source: Caselaw Access Project

author: PLEASANTS, C. J.

license: Public Domain

text:
    GALVESTON-HOUSTON ELECTRIC RY. CO. et al. v. JEWISH LITERARY SOCIETY.
    (No. 7173.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 23, 1916.
    On Motion for Rehearing, Jan. 26, 1917.)
    1. Eminent Domain <&wkey;276—Taking of Property— Additional Servitude in Street—Interurban Railroad.
    The operation on existing street railroad tracks and subject to the city ordinances regulating speed along, a public street, the fee of which is owned by, the abutting- landowners, of an interurban electric railroad carrying passengers and express but no freight, which generally operates single passenger cars weighing about twice as much as ordinary street cars, but sometimes operates a train of two and occasionally three cars, and which is required to carry passengers between points within the city the same as an ordinary street railroad, giving- and accepting transfers to other street car lines, though it discouraged passengers who could be served by the regular street cars from riding on; its cars, and which operates its express cars, which are lighter than the passenger cars, singly, but does not limit the weight of articles which it will transport thereby, is more analogous to the operation of a street railroad than of an ordinary steam commercial railroad, and does not impose an additional servitude on the abutting property owners which entitled them to restrain the operation thereof until compensation is paid for the taking of their property.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 774.)
    On Motion for Rehearing.
    2. Eminent Domain &wkey;>315 — Injunction-Review — Questions oe Law.
    The question whether the operation of interurban electric cars along a street imposes an additional servitude on the street, not contemplated in its dedication, is a question of law on which the appellate court is not bound by'the decision of the trial court.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 829-833.)
    3. Appeal and Error <&wkey; 1011(1) — Review— Findings oe Fact.
    The appellate court canpot make a finding of fact contrary to the finding of the trial court if there is any conflict in the evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3988.)
    4. Appeal and Error <&wkey;1012(l) — Review-Findings oe Fact — Weight oe Evidence.
    If reasonable minds could differ as to the fact conclusions to be'drawn from the evidence, the appellate court must adopt the findings of the trial court, unless they are against the overwhelming weight of evidence, in which case the appellate court can reverse the judgment and remand for new trial, but "cannot substitute its own findings.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3990-3992.)
    5. Appeal and Error ii&wkey;981(l) — Review— Presumptions — Absence oe Findings oe Fact.
    Where the trial judge filed no conclusions of fact, the appellate court must presume that every fact which there was sufficient evidence to support and which was necessary to sustain the judgment was found.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3762.)
    6. Eminent Domain <@=^302 — Negligent Operation oe Street Car — Damages to Property Owner.
    In an action in the nature of trespass to try title by the owner of the fee in the street to recover possession of the street, subject only to the use of the public for ordinary street and highway purposes, as against an interurban company operating cars along the street, plaintiff could not recover damages for the negligent operation of the interurban cars in violation of the city ordinances, and the appellate court need not, on reversing the judgment for plaintiff, remand the case to permit plaintiff to amend its petition to claim such damages, but can render judgment for defendant which will not bar an action tó recover those damages.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 815, 819.)
    7. Street Railroads ®^70 — Regulation— Ordinances — Construction.
    Where a city ordinance authorized a street railroad company to permit an interurban company to operate its cars over the street car lines within the city, provided that if the local service furnished by the interurban company should be insufficient the city could require the street car company to furnish, local service along those lines, and that until it was furnished the interurban company should stop its cars at reasonable intervals for passengers and should carry local passengers at the legally established rate for the street car company and furnish transfers to other street car lines, with a proviso that the interurban company should be under no obligation to furnish such local service if the street railroad had undertaken to do so, and that through cars or trains making through trips should not be required to render such service, the expressions “through cars” and “through trips” in the proviso mean special ears, and does not apply to cars on the regular schedule of the interurban company.
    [Ed. Note. — For other cases, see Street Railroads, Cent. Dig. §§ 147%-149.)
    8. Eminent Domain <&wkey;276 — Additional Servitude — Street Railway — Fregiit—Ex-press.
    The question whether goods carried by an interurban electric railroad are express or freight, on which depends whether the railroad is an additional servitude on the street, does not depend on the weight of the separate articles, but on the manner in which they are carried, since the carriage of a few heavy articles would ’ not- damage the abutting owners more than the carriage of a large number of lighter articles in the same car.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 774.)
    Appeal from District Court, Harris County; Charles E. Ashe, Judge.
    Action by the Jewish Literary Society against the Galveston-Houston Electric Company and another. Judgment for the plaintiff, and defendants appeal.
    Reversed, and judgment rendered for defendant in part, and motion for rehearing overruled.
    Baker, Botts, Parker & Gar,wood, C. R. Wharton, and J. C. Townes, Jr., all of Houston, for appellants. S. H. Brashear, of Houston, for appellee.
   PLEASANTS, C. J.

This suit was filed by the Jewish Literary Society, plaintiff, against the Galveston-Houston Electric Railway Company and the Houston Electric Company, defendants, in March, 1915, in the district court of Harris county, Tex. The suit is in trespass to try title with additional prayer for damages and injunction.

Under date of April 22, 1915, the plaintiff filed its first amended original petition, ih which it alleges, in effect:

(1) That the plaintiff is a Texas corporation; that the defendant Galveston-Houston Electric Railway Company is an interurban railway company; and that the Houston Electric Company is a street railway, both. o£ the defendants being incorporated under, and by virtue of, the provisions of the Texas statutes.

(2) That on April 1, 1913, the plaintiff was the owner and in peaceable possession of certain lands in the city of Houston, Harris county, Tex., described as two tracts: Tract No. 1 being lot 7, in block 122, in the city of Houston (52 feet in width by 100 feet in depth), fronting and abutting upon the city street known as Jackson street; and tract No. 2 being a rectangle 52 feet long and 40 feet .wide, and- being that portion of said Jackson street immediately adjacent to said tract No. 1 and extending out to the middle of the street.

(3) “That the said tract above described as the second tract is now, and has been for the past 50 years, used as part of a street known as Jackson street, 80 feet in width between property lines, and during all of said time, the plaintiff and its predecessors in title did own to the center line of said street between its property and the properties on the opposite side thereof from it, subject only to the right of the public to use the same for ordinary street and highway purposes; that is, for purposes of ordinary travel.”

(4) Plaintiff claims to own the said portion of Jackson street in fee simple, subject only to the right of the people to use the same for ordinary street and highway purposes.

(5) That on April 1, 1913, the defendants unlawfully entered upon said portion of said Jackson street described as second tract, and built tracks thereon for the purpose and uses of a railroad, using large and heavy cars and trains of cars and carrying large numbers of passengers and large quantities of freight and baggage. That defendants are using said portion of said street for railway purposes, and not for street railway purposes, and have deprived the plaintiff of the full use and enjoyment of said street. That the use made of said street by defendants constitutes an additional burden and servitude thereon to plaintiff’s damage in the sum of $5,009.

(6) That said street has never been condemned by the defendants.

(7) That plaintiff has for the past six years maintained a building upon the said city lot abutting upon the street in question and has used same as a literary society and for amusement purposes. That the defendants are operating, upon the street in front of said building, a railroad between the cities of Houston and Galveston and other points. That cars and trains of cars making 40 trips per day pass said building, causing great noise, dust, and vibration with resulting annoyance and discomfort to plaintiff.

(8) That the reasonable rental value of the said portion of said Jackson street is $75 per month.

Plaintiff asks that the title to and possession of the said portion of said street (subject to the right of the public to use the same for ordinary street and highway purposes) be declared to be in it, and that it have a judgment for its rents and damages, and further that the defendants be enjoined and restrained from operating its business over and upon said portion of said street.

Under date of May 13,1915, the defendant Galveston-Houston Electric Railway Company filed its first amended original answer comprising the following:

(1) A general demurrer directed against the plaintiff’s first amended original petition. (2) Several exceptions. (3) A general denial placing in issue all of plaintiff’s averments. (4) Numerous special denials. (5) A statutory plea of “not guilty.” (6) This defendant further alleges, in substance:

“(a) That it is an electric interurban railway chartered under the laws of the state of Texas for the purpose of constructing, equipping, maintaining, and operating a line of interurban electric railway between the city of Houston in Harris county, Tex., and the city of Galveston, Galveston county, Tex., for the transportation of passengers between said cities and intermediate points in and between each of said cities. That it is incorporated under the act of 1907, which is now chapter 17 of the Revised Statutes of this state. That it is engaged in the transportation of passengers and some express, but does not carry freight.
“(b) That the interurban company has not and is not depriving the plaintiff of its use and enjoyment of Jackson street.
“(c) That on or about August 11, 1910, and for many years prior thereto, the defendant Houston Electric Company operated a line of street railway on and upon said Jackson street in the said city of Houston, under a lawful franchise from said city, authorizing it to construct, maintain, and operate lines of street railway in said city for carrying passengers. That on or about said 11th day of August, 1910, the Houston Electric Company made an agreement with this defendant Galveston-Houston Electric Railway Company, by the terms of which it permitted this defendant to operate its electric cars over the lines of the said Houston Electric Company on Jackson street, and this agreement between the two companies was ratified and confirmed and authorized by the city of Houston, so that it became a valid and binding ordinance of the city of Houston and granting by its terms to this defendant the right to operate its electric cars over the lines and tracks of the Houston Electric Company on Jackson street and Pierce avenue within the city limits. That thereafter, on or about the 24th day of July, 1911, this defendant and Houston Electric Company made a further and supplemental agreement with reference to the operation of this defendant’s ears over the aforesaid tracks of the Houston Electric Company, and this supplemental agreement was also ratified and confirmed by the city of Houston, so that it became a valid and binding ordinance, granting to this defendant the right and privilege to operate its electric cars over the aforesaid lines and tracks, and thereafterwards this defendant, under the authority granted in these ordinances and contracts, began, on or about December 1, 1911, to operate its electric cars in the city of Houston and between the cities of Houston and Galveston and intermediate points along its route.
“(d) That this defendant is not a trespasser upon said Jackson street, but is there under lawful authority granted it by the city of Houston and by its codefendant, the Houston Electric Company.
“(e) That the operation of its cars upon said street is not an additional burden or servitude upon said street, but is the exercise and enjoyment of the easement and privilege for which the street was and is dedicated.
“(f) That the city of Houston, under its charter in force at the time these contracts were made in 1910 and 1911, and under all preceding charters of the city since its first incorporation in 1839, has had the absolute control and management of public streets within the city of Houston and the right to grant privileges of this character, and police power to regulate traffic on these public streets including Jackson street. That there is little or no dust and noise and inconvenience incident to the operation of the interurban cars, and that the operation of same does not constitute a nuisance. That this defendant has been operating its said cars in the same way since December 1, 1911, and any complaint upon the part of the plaintiff as to the alleged dust, noise, etc., and damage incident thereto, is barred by' the two years’ statute of limitation.
“(g) That there is no rental value of the portion of Jackson street for which plaintiff sues for title and possession; if there were any rental value, plaintiff has no right to rent said street or to receive the proceeds of any such rental value.
“(h) That this defendant procured its charter from the state of Texas, authorizing it to build and construct its line of street railway between Houston and Galveston, and procured from the city of Houston the right to operate its ears over the lines of the Houston Electric Company as hereinbefore set out.
“(i) That all of these facts were published and notorious and well known to the public, including this plaintiff, from the time this defendant began its construction and from the time it began its operations. That this defendant has invested several millions of dollars in the construe-^ tion and maintenance of its line and equipment* essential to the conduct of its business. That it is impossible for it to operate its line without, reaching from the center of the city of Houston to the center of the city of Galveston. That the plaintiff well knew that it was constructing its 'lines and that it was about to operate its cars over Jackson street, but said plaintiff made no objection to its so doing, but stood by and remained silent while this company, operating under its lawful grant from the city of Houston, went forward and built its line and began operating its interurban street railway, and remained silent for more than two years after said operations were begun. That the operation of this line of interurban street railway is a great convenience to the public. That this defendant carries passengers for a fare of five cents from points in the city to the outer edges of the city of Houston, and does a local business within said city of Houston. That it is furthering the purpose for which the city streets and highways of the country were dedicated, and that it would be inequitable and unjust to allow the plaintiff to enjoin this defendant from operating its cars in the city of. Houston. That such a proceeding would deprive this defendant of the value of its property and would render its investment ineffectual and would deprive the public of the benefits derived from the efficient service of the carrying of passengers. And also that the plaintiff is by these facts and circumstances estopped from maintaining this suit, and is estopped from questioning the right of this defendant to operate its said cars along Jackson street.
“(j) That this defendant is not a railroad within the meaning of the term ‘railroad’ as used by the statutes of the. state of Texas, and that it is not amenable or subject to the restrictions and burdens of the laws of the state of Texas upon railroads, which railroads mean steam, commercial railroads; and that this defendant is engaged in the business of carrying passengers and light express in electric cars, and therefore is not, within the meaning of the laws of Texas, an additional burden or servitude upon the highways and upon the streets of the city of Houston. That this defendant has been since its beginning continuously, and is now, performing the service of an electric street railway or ‘street car line,’ within the city limits of the city of Houston.
“(k) That this defendant has never been, and is not now, engaged in the carriage of freight, and has never been treated, dealt with, or considered by the Railroad Commission of Texas as a commercial railroad. Said commission with full knowledge of the nature of this defendant’s business has failed and refused to exercise control or supervision over this defendant and its business.”

Under date of May 13, 1915, the defendant Houston Electric Company filed its first amended answer, comprising: (1) A general demurrer directed against the plaintiff’s first amended original petition; (2) several special exceptions; (3) an averment to the effect that this defendant adopts the allegations contained in the first amended original answer of the defendant Galveston-Houston Electric Railway Company; (4) an allegation that this defendant is engaged in the business of a street railway company, properly chartered for said purpose under the laws of the state, and that it is operating its cars over the street in question under legal and sufficient franchises duly obtained from the city of Houston, and that its use of the street in question is not an additional burden or servitude upon same; and (5) a statutory plea of “not guilty.”

Under date of May 13, 1915, the plaintiff filed its first supplemental petition replying to the first amended original answer of the defendant Galveston-Houston Electric Railway Company.

Under date of May 13, 1915, the plaintiff filed its second supplemental petition in reply to the first amended original answer of the defendant Houston Electric Company. This supplemental petition consists of: (1) A general demurrer; (2) a general denial; (3) special denials of the allegations contained in said defendant’s answer.

Under date of May 13, 1915, the defendant filed a first supplemental answer replying to-the first and second supplemental petitions filed herein. This supplemental answer consists of a general demurrer, general denial, and other special denials.

The case was tried before Judge Charles E. Ashe, without the intervention of a jury, the trial beginning on May 17, 1915, and concluding on the following 3d day of June. During the trial the attorneys for the plain'tiff abandoned their efforts to recover a judgment for rents and damages and waived-shme. They also waived their prayer for injunction.

The court determined the question of title in favor of the plaintiff, and entered a judgment decreeing that the plaintiff have and' .recover of and from the defendants the title to and possession of the land hereinbefore mentioned; tract No. 1 being the lot abutting on Jackson street, and tract No. 2 being a portion of Jackson street. After decreeing the title to the second tract to be in the plaintiff, the judgment reads:

“And this recovery is adjudged subject only to the right of the general public to use said second tract for ordinary street and highway purposes, that is, for ordinary travel thereon, and subject to the right of the Houston Electric Company, or its assigns, to operate a street railway upon, over, and along said street, and not for the use or operation thereon, or on any part thereof, for interurban railway purposes, or for freight, express, passenger, or baggage business between the cities of Houston and Galveston or between the city of Houston and any other point outside thereof, or for any travel to or between said points.”

The court further awards to the plaintiff in said decree a writ of possession and costs of court.

The foregoing statement of the pleading and the result of this suit is copied from appellant’s brief, and its accuracy is conceded by appellee.

It was agreed upon the trial that Jackson street was dedicated to the public by Mosely Baker, subsequent to the year 1842 and prior to the year I860; that such dedication was for street purposes without exactly specifying what uses could be made thereof. It was further agreed upon the trial that the plaintiff owns lot 7, in block 122, in the city of Houston, abutting on Jackson street (described in plaintiff’s petition as “first tract”-), and also owns the underlying fee to that portion of Jackson street abutting upon the said lot 7 (described in plaintiff’s petition as “second tract”), subject to the easement of the public to use said street as a public highway and eity street. It was also agreed that the lot in question, in which the building of the Jewish Literary Society stands, was in possession of the plaintiff, the Jewish Literary Society, when the track in question was built, and during all times involved in this suit, and for the last five years, and now.

The use made of the property is shown by the following testimony of one of the members of plaintiff society:

“The building on the property in question is used by Jewish Literary Society to hold meetings, to hold literary meetings, to hold social meetings, to hold business meetings> and all kinds of gatherings pertinent to that kind of an organization, outside of games. There are no games going on outside of dominoes. And also I might say that there is a Sunday School conducted there every Sunday morning. As to the frequency with which meetings are held, the board meetings used to be twice a month, I think. During the summer months, they stretch them out to one time a month. Then, during the literary season, there is one literacy program a month. Then they have one or two socials, and then there are committee meetings and other meetings. There is a crowd gathering there practically every night, one way or the other, except Saturday. The plaintiff is a corporation. I am not an officer now. I have been a director, but I am not now.”

The defendant Houston Electric Company is a private corporation organized under and by virtue of the laws of th'e state of Texas, under date of October 25, 1901, “for the purpose of constructing, acquiring, maintaining and operating street and suburban railways for the transportation of passengers within and near the city of Houston, in Harris county, Texas.” The Houston Electric Company, by virtue of certain ordinances duly enacted and passed by the city of Houston, has the right of operating a line of ordinary street railway over Jackson street and Pierce avenue in the city of Houston, and has had such right and privilege for as much as the last five years preceding the date of the trial,' and that such right and privilege will continue under ordinances for more than the ensuing ten years.

The defendant Galveston-Houston Electric Railway Company is a private corporation organized under and by virtue of the laws of the state of Texas (under what is now chapter 17 of the Revised Statutes), its charter having been procured under date of April 15, 1907, “for the purpose of constructing, acquiring, maintaining and operating a line of interurban electric railway between the city of Houston, in Harris county, Texas, and the eity of Galveston, in Galveston county, Texas, for the transportation of passengers, and to construct, own and operate union depots.”

About the middle of the year 1911, and before the interurban company began operation, the Houston Electric Company double-tracked its line on Jackson street. This second track was laid in pursuance of a contract entered into between said company and the interurban company by which the latter would operate its cars over the tracks of the former company in the eity of Houston. This contract and a supplemental contract upon the same subject entered into by and between said companies was approved by the city council of the city of Houston on July 24, 1911. In the same ordinances in which the city authorities approved the contract in question, they expressly grant the Houston Electric Company the right to double-track Jackson street, and expressly authorize the operating agreement between the Houston Electric Company and the interurban company with reference to the use of Jackson street, and also expressly grant to the interurban company a franchise to operate its cars over said double tracks on Jackson street.

. City Charter of the City of Houston, § 4, art. 2, reads as follows:

“Sec. 4. Street Powers. — The city of Houston shall have the power to lay out, establish, open, e'itend, grade, narrow, care for, sell, pave, supervise, maintain and improve streets, alleys, sidewalks, squares, parks, public places, and bridges, and to vacate and close the same; and to regulate the use thereof; and to require' the removal from the'streets and sidewalks of all obstructions, telegraph, telephone, street railway •or other poles carrying electric wires, signs, fruit stands,' showcases, and encroachments of every character upon said streets or sidewalks; and to vacate and close private ways.”

The city charter further authorizes the city .to regulate the operation of street and electric railway companies to the very fullest extent, and further expressly empowers the city to authorize interchange of service and common use of tracks.

It was agreed upon the trial of this case that the previous charters of the city of Houston have always contained provisions substantially similar to the provisions of the charter of 1913 mentioned above.

The interurban company did not begin operation of its cars until on or about December 1, 1911.

The double tracks laid by the Houston Electric Company on Jackson street in pursuance of said contract extend in a southerly direction from Texas to Pierce avenue, a distance of 14 blocks. The lines then run easterly on Pierce avenue 16 or IT blocks to Sampson street, from which street a single line laid and owned by the Houston Electric Company extends to the city limits, a distance of approximately 2 miles. Both of the double tracks before mentioned are used by both of the companies and are constructed in the same way and just as other tracks in said city which are used exclusively by the Houston Electric Company. The track from Sampson street to the city limits is used only by the interurban company. Under the' contract and ordinance before mentioned, the interurban company is required to accept and transport passengers within the city limits for the same fare charged by the Houston Company, and to give transfers from its cars to any street car line in the city, and also to accept transfers from any of said street ear lines for transportation on its cars within the city limits. City passenger traffic is discouraged by the interurban company along Jackson and Pierce avenue and also on Texas avenue, street cars being operated on said streets and avenues, but between Sampson street to the city limits the interurban does all of' the city passenger carriage. There are vacant blocks on either side of the line from Sampson street to the city limits, and the interurban does not stop its cars at every block, but makes only five stops for reception and exchange of passengers between Sampson street and the city limits. On Pierce avenue, Jackson street, and Texas avenue it- stops its cars to discharge and receive passengers every three or five blocks; but, as before stated, it discourages city passengers from boarding its cars on these streets unless such passengers desire to go to a point where the street car does not operate.

In laying the double track upon Jackson street, the Houston Company used a large quantity of gravel and- shell for ballast, and the surface condition of the street was thereby improved and made better for travel. The two tracks, of course, take up more of the street than the space formerly occupied by the one track, and the width of the space on-each side of the tracks between them and the' ditch or drain which separates the traveled" portion of the street from the sidewalk is at places along the street barely wide enough to permit a vehicle to pass. This condition, together with the more frequent passage of cars along the street, renders it less convenient as a means of ingress and egress to property abutting thereon than it was before the double track was laid and the interurban company began operations. The interurban company runs at least 40 cars or trains a day over-the tracks of said street, and occasionally 50 or more are run in a day. Usually the cars are run singly, but a train of 2 cars is sometimes run and occasionally a train of 3 cars. Some of the cars operated by the ' interurban company are designed and used only for the carriage of baggage and express. These cars are operated separately from the passenger cars, and are not run in trains but singly. The articles shipped in said cars are gathered by the compány from its customers at the point of shipment and delivered to the consignees at their address at the point of destination, just as the business of an express company is conducted. Some of the articles which have been transported on these cars weighed as much as 1,000 pounds, and articles of greater weight can be handled and shipped thereon. The transportation company which conducts this business, the cars used therein being furnished and operated by the interurban company, has solicited and obtained business from merchants in Houston who have merchandise shipped from New York to Galveston by steamship and from Galveston to Houston via the interurban. The interurban passenger cars are about 35 per cent, longer and 35 or 40 per cent, heavier than the average street ear in use in the city of Houston. The baggage and express cars are the same size, but from one to two tons lighter than the passenger cars. The speed of interurban cars within the city limits is regulated by city ordinance and cannot exceed that to which the street ears are restricted. There is no evidence that the interurban cars run faster along the streets than the street cars. The fact that they take less time in going from the interurban station on Texas avenue to Sampson street than the street cars consume in going the same distance is because they do not stop to receive and discharge passengers so often, and does not indicate that they run faster. The evidence justifies the conclusion that the dust raised by the interurban cars and the noise and vibration caused by their operation is, on account of their greater size and weight, greater than that caused by the street cars. There is evidence that on several occasions exercises and business meetings which were being held in appellee’s building were disturbed by the noise made by interurban cars passing along. Jackson street.

The first and second assignments of error presented in appellant’s brief are as follows:

Eirst assignment of error: “The court erred in finding for the plaintiff and entering judgment herein in favor of the plaintiff and against the defendant Galveston-Houston Electric Railway Company, for the tract of land described in plaintiff’s petition and in the judgment entered herein, as‘“second tract,’ same being a portion of Jackson street in the city of Houston, because the use being’ made of said Jackson street by said defendant, and the use which it intends to make of said street, is one of ordinary street uses and purposes for which said street was dedicated and intended, and said use by said defendant does not constitute an additional burden upon said highway.”
Second assignment of error: “The court erred, in finding for the plaintiff and entering judgment herein in favor - of the plaintiff and against the defendant Galveston-Houston Electric Railway Company, prohibiting and preventing said defendant from using Jackson street ‘for interu'r-ban railway purposes or for express, passenger or baggage business between the cities of Houston and Galveston, or between the city of Houston and any other point outside thereof, or for any travel to or between said points,’ because, under the facts of this case and the law applicable thereto, the operation’of the business of the Galveston-Houston. Electric Railway Company does not constitute an additional burden or servitude upon the fee of said Jackson street, the use for which said highway was and is intended; this is especially true since the evidence undisputably establishes: (1) That this defendant operates electrically propelled cars (usually singly) of light weight, which constitute substantially the same burden upon the highway that ordinary street cars do; (2) that this defendant operates said cars over and upon the oi’dinary street car tracks of its codefendant, which tracks are substantially flush with the street surface, and which would remain and be upon said street even if this defendant made no use of same; (3) that this defendant operates its cars as ordinary street cars, and conducts a local street car business, serving the local needs and convenience of the citizens within the limits of the city of Houston; and (4) that this defendant does not conduct its business in the manner adopted by steam or commercial railways, does not use similar equipment, and-does not carry freight.”

The question presented by these assignments is difficult of decision and one upon which there is a conflict in the authorities. The decisions of our Supreme Court have settled two similar questions:

Eirst, that the occupation of a street by a commercial steam railway by placing its tracks thereon and operating its trains there-over is not such use of the street as was contemplated in its dedication to the public, and is a taking of the fee of abutting property owners in the street, and that such owner is entitled to an injunction to prevent such taking unless compensation is made therefor. Railway Co. v. Fuller, 63 Tex. 469; Lumber Co. v. Railway Co., 104 Tex. 8, 133 S. W. 247, 36 L. R. A. (N. S.) 662, Ann. Cas. 1913E, 870.

Second, that the construction and operation of an electric street railway along a public street is not an appropriation of the street to a different purpose from that for which it was originally dedicated, and does not impose an additional servitude upon the street which would entitle an abutting property owner who owns the fee in the street to compensation. Street Ry. Co. v. Limburger, 88 Tex. 79, 30 S. W. 533, 53 Am. St. Rep. 730.

There is no decision of our Supreme Court upon the question of whether the operation along a public street of an interurban electric railway of the character of appellant ‘railway imposes an additional burden upon the street which entitles the abutting property owner who owns the fee in the street to compensation for taking or damaging Ms property. The determination of this question in a particular case depends upon whether the method of construction and operation of the interurban railway is more akin to that of a commercial steam raEway or the ordinary electric street railway. The question is a very practical one, and should be determined by the facts of the case, and not upon theory or legal fiction. It seems to us that some of the tests applied by the courts in determining whether an interurban railway should be placed in the class of commercial or street railways are arbitrary and unreal, and that the only practical and real test is whether the use of the street by such railway is different from that contemplated in its dedication to the public, or materially interferes with the general and ordinary-uses for which the dedication was primarily made. Mr. Lewis, in his work on Eminent Domain (3d. Ed. § 156), says:

“Starting with the well-settled proposition that the street passenger railway is a legitimate street use, and that the commercial railroad is not, it does not seem difScult to dispose of the interurban railroad. In so far as it is operated as a street passenger railway, in aid of the local travel, stopping at street crossings or at convenient intervals, to take up and let down passengers, it is on the same basis as the urban street railway. If not operated for the accommodation of local travel, and in substantially the same manner as the urban street railway, it should be classed with the commercial railroad, with the consequent liability to abutting owners. Such a railroad with its trains sweeping across the country at 20 or 30 miles an hour, and sometimes more, stopping only at cities and towns, and at infrequent intervals in the country, and in the cities and towns stopping only for the accommodation of its interurban passengers, and not at all for local traffic on the street, is clearly analogous to the steam railroad, and competes with it and it alone. * * * If the interurban railroad carries freight as well as passengers, the analogy to the steam railroad is complete.”

If these conclusions of the learned author are correct, the facts of this case place the appellant company upon the same basis as the street railway company. The undisputed evidence shows that it ús operated within the city of Houston in aid of local travel, and that it stops at convenient distances to take up and let down passengers. ■ The effect of this undisputed evidence is not lessened by the admission of appellant’s manager that it does not encourage local passenger travel on its cars along those streets upon which the street ears operate. The' facts remain that it furnishes the only means of local transportation for passengers along a large portion of the line over which it operates in the city of Houston, and that this local passenger traffic is conducted in the same manner as the street railway conducts its business and is subject to the same regulations by the city authorities. It receives and issues transfers from and to all of the street ear lines in said city, and must be regarded as furnishing an integral part of the local transportation facilities of the city. It is true that it carries freight, if the word “freight” is given its most comprehensive meaning, which would include any article or thing which is transported whether by express or by freight trains. It is clearly not engaged in the operation of freight trains, nor is it conducting a freight business as distinguished from an express business. On the contrary, it conducts an express business just as such business is conducted by express companies upon all of the passenger trains in the country. The fact' that some of the articles of merchandise transported by it are shipped from points outside of this state to Galveston to be transported by appellant from Galveston to Houston, and that appellant solicits business of this kind, does not make the business conducted by it a freight business as distinguished from the carriage of express. The Supreme Court of Indiana, in the ease of Mordhurst v. Et. Wayne Traction Co., 163 Ind. 268, 71 N. E. 642, 66 L. R. A. 105, 106 Am. St. Rep. 222, 2 Ann. Cas. 967, which was a suit by an abutting property owner, who owned the fee in the street, to recover damages alleged to have been caused his property by the operation of an interurban electric railway along said street, says:

“The fact that light express matter, passenger baggage, and United States mail matter are carried on a car, does not affect the property owner, nor injure his property. The transportation of articles of this kind does not create any resemblance between the interurban electric railroad and a steam railroad carrying ordinary goods and merchandise, and results in none of the annoyances and injuries which are caused by either passenger or freight trains on such a railroad.
“Trains on steam railroads are drawn by locomotives of enormous size and weight, which constantly emit smoke, sparks, cinders, and steam, and which drop coals of fire from their fire boxes. Their passenger trains usually consist of an express and baggage car, and from one to many large and heavy passenger coaches. Freight trains, as commonly made up, contain from 1 to 25 or 30 large, roughly constructed cars for the transportation of coal, stone, iron, coal oil in tanks, lumber, live stock, and other heavy merchandise of every description. Such trains, so propelled, unavoidably fill the atmosphere in their vicinity with dust, smoke, and Steam, make much noise when running, stopping, and starting, seriously obstruct the streets and street crossings, and for considerable periods every day to a great extent exclude other travel and traffic from the streets on which they are moved.
“A fair comparison of the incidents and consequences attending the running of a single interurban electric car carrying passengers ■ and baggage, light express matter, and United States mail matter over the streets of a city, or resulting therefrom, with the real and substantial annoyance, inconvenience, danger, and injury to property attending the operation of passenger and freight trains on steam railroads, will demonstrate that most, if not all, the ills and_ injuries anticipated from the former, are imaginary, or at least greatly exaggerated. * * *
“The only basis for a claim for compensation is the circumstance that the interurban railroad is intended for the transportation of persons, baggage, light express matter, and United States mail matter to places outside of the city of Ft. Wayne, and at greater or less distances therefrom. The reason given in support of this claim is that, while the interurban railroad is, to some extent at least, a new and additional servitude, it is of no local benefit to the abutting property, that it does not aid in carrying forward the local travel or assist in the work of transportation for which the street was designed, and that the passengers and goods carried by it would not, in its absence, have been brought upon the street at all. It is contended that this is a use of the street not contemplated by the landowners who laid out or dedicated the highway. A street platted or otherwise laid out in a city or town of this state is thereby dedicated to the use of the public, and not exclusively to the use of abutting property owners, or to the convenience or profit of any or all of the inhabitants of the particular municipality. It forms a part of the great system of highways of the state, and its use for intercommunication with other neighborhoods, towns, and cities is one of its most important purposes. * * * The dedication of a street must be presumed to have been made, not for such purposes and usages only, as were known to the landowner and platter at the time of such dedication, but for all public purposes, present and prospective, consistent with its character as a public highway, and not actually detrimental to the abutting real estate. (Citing authorities.) _ The convenience and advantage of all the inhabitants of the city and of the public at large must be regarded as the objects contemplated when the street was laid out or opened. A narrower construction would require a sacrifice of the greater interests of the community and the public to-the inferior and subordinate claims of the local lot owner and abutter.”

In the Mordhurst Oase, the interurban company did not use the tracks of the local street car company, but constructed its own line, and did not carry local passengers. In-other respects it operated its railway just- as appellant’s is operated.

We think this holding by the Indiana court is sound in principle and supported by the-weight of authority.

An interurban electric railway company might so construct its tracks and operate its-cars as to bring itself in the class of steam or commercial railways and be held to the-same liability to owners of property abutting upon streets upon which it operates, but we do not think upon the facts of this case the appellant interurban railway can be held to such -liability. If, as we have above held, the operation of the interurban railway does not impose an additional burden upon Jackson street, its operation along and over said, street cannot be regarded . as .a taking of appellee’s fee in the street, and the judgment: of the court awarding appellee title and possession of that portion of the street in whiehi it owns the fee cannot be sustained.-

' These conclusions render a discussion of the other questions presented in appellant’s brief unnecessary. The evidence upon which these conclusions are based being undisputed and having been fully developed, it follows that the portion of the judgment complained of should be reversed, and judgment here rendered for appellants, and it has been so ordered. That portion of the judgment awarding appellee title and possession of tract No. 1 described in its petition is affirmed.

Reversed and rendered in part, and affirmed in part.

On Motion for Rehearing.

In the motion for rehearing presented by appellee, the opinion of this court, reversing the judgment of the court below and rendering judgment for appellants, is vigorously assailed, and we deem it proper to answer some of the objections urged against our conclusions both of law and fact.

The question of whether the operation of interurban electric cars along Jackson street imposes an additional burden upon the street, in the sense that it is an appropriation of the street for purposes and uses not contemplated in its dedication, is a question of law, and this court is therefore not bound by the conclusions of the trial judge on such question. We do not understand learned counsel for appellee to contend otherwise. We cannot, however, make a finding of fact contrary to the finding of the trial court, if there is any conflict in the evidence upon such fact issue. If reasonable minds could differ in the fact conclusions to be drawn from the evidence, the appellate court must adopt the finding of the trial court, unless such finding is against the overwhelming weight of the evidence, in which case the appellate court, while it cannot substitute its findings for that of the trial court and rénder judgment thereon, is authorized to reverse the judgment and remand the cause for a new trial.

No conclusions of fact were filed by the trial judge, but we must presume that every fact which there was sufficient evidence to support and which was necessary to sustain the judgment was found by him.

One of plaintiff’s witnesses testified that an electric car of appellant company running along Jackson street “made more noise than would be made by a steam train.” Another of plaintiff’s witnesses made the statement, in regard to the speed of the interurban cars, that they “ran like a streak of lightning”; and another testified that the vibration caused by these cars was “terrible.” If we could presume that the trial court found these apparently unreasonable statements were true, it is, we think, clear, in view of the undisputed evidence as to the size of the cars, the number which are run together as a train, the facts that they are run over- the' tracks used by the street car company and their speed is limited by the city ordinance to that of the street cars, that the excessive noise and vibration described by the witnesses was due to the Unlawful and negligent operation of the ears and could not result if the cars were operated with proper care and in accordance with the city ordinance, and that the only reasonable conclusion to be drawn from the whole evidence as to the necessary noise and vibration caused by the running of the interurban cars when they are not operated in a negligent manner is that stated in our former opinion.

Plaintiff would have a remedy for any injury it may have sustained because of the noise and vibration of the interurban cars due to the unlawful or negligent manner of their operation, but no such claim is asserted in this suit. The prayer of plaintiff’s petition is not accurately stated in our former opinion. The prayer is as follows:

“Wherefore plaintiff brings this action, and prays citation to defendants, and that on hearing it have judgment for the title to and possession of said promises, subject only to the right of the public to use said second tract for ordinary street and highway purposes, that is, for ordinary travel thereon, and not for the uses which defendants have made-or are making thereof, as hereinbefore alleged, and for its damages, that is, the rental value aforesaid, and— until a. writ of possession herein shall be executed — enjoining and restraining the defendants from using the same for any purposes except for ordinary travel thereon, and from using or operating thereon any ears for interurban railway purposes, or for freight or passenger or baggage purposes for travel between the cities of Houston and Galveston and any other points outside of said cities, and to and from any points whatever, and awarding a writ of possession, and for costs and general relief.”

It is clear from the petition that plaintiff does not sue for damages for the unlawful or negligent operation of the railway by defendants, but the suit is one in trespass to recover the title and possession of the property and the reasonable rental value of its use and occupancy by the defendants, and a temporary injunction was asked to restrain defendants from using the property pending a determination of the question of title and possession. It expressly • waived its claim for damages, and while the statement in our opinion, which was taken from appellants’ brief, that it waived its prayer for injunction, does not seem to be borne out by the record, the fact remains that its claim to injunction was based on its claim to the right of possession of the property occupied by the tracks of defendants, and not to prevent injury to plaintiff’s abutting property caused by the negligent operation of the railway. Our conclusion that the use and occupancy of the street by the defendants is not a taking of plaintiff’s property, disposes of its prayer for injunction. As before stated, if plaintiff’s property has been damaged or it hás suffered any injury by reason of the unlawful or negligent operation of appellant’s railway, it is entitled to recover for such injury, and the. judgment in- this suit will not be a bar to sucb claim. There is therefore no reason for remanding this ease in order to give appellee an opportunity to amend its petition and sue for damages caused by the negligent operation of appellant’s ears.

In response to the request for additional conclusions of fact, we find that our statement in the main opinion that the interurban passenger cars were 35 or 40 per cent, heavier than the cars used by the street car company is erroneous. The record shows that they are nearly twice as heavy.

Upon the question of the local service rendered by the interurban company, we add to our former findings the following: The ordinance under which the interurban company was granted the right to use the streets contains the following provision:

“Provided, however, that the Galveston-Houston Electric Railway Company shall be under no obligation to furnish such local service _ between points on said new tracks or extensions after the Houston Electric Company has undertaken to and is furnishing the same; and provided further, that through cars or trains of ears of the Galveston-Houston Electric Railway Company making through trips between Houston and Galveston, or between Houston and other points on the line of the Galveston-Houston Electric Railway Company shall not be required to render such local service.”

This provision of the ordinance granting the franchise must be read in connection with the provision in said ordinance, the substance of which is stated in our former opinion, and which is as follows:

■ “That if the local transportation service between points on the extensions of the lines of the Houston Electric Company as furnished by the interurban company shall prove at any time inadequate and insufficient, the city shall have the right to require and it shall be the duty of the Houston Electric Company to furnish adequate local service in going to and coming from points on said new tracks; and that until such local service is furnished by the Houston Electric Company, it shall be the duty of the interurban company to establish and maintain, at reasonable distances along said new tracks or extensions, within the city, stopping points for receiving and discharging passengers, and it shall likewise be the duty of the interurban company to stop its cars at such points to receive and discharge passengers; and it shall be the further duty of the interurban company to carry local passengers received at said points to any other point on the tracks of the Houston Electric Company in the city of Houston over which the interurban company may operate for the legally established rate for local street car service, and if the destination of such passengers be to some point in the city of Houston requiring a transfer, to furnish such transfer, and to recognize transfers of the Houston Electric Company issued under ordinances of the city, from points on the line of the Houston Electric Company to points on said new tracks or extension.”

When these two sections or provisions are construed together, it is manifest that the terms “through cars or trains of cars” and “through trips,” used in the provisions first quoted, mean special cars or trains of cars, and do not apply to cars on the regular schedule of the interurban company.

The section of the city from Sampson street to, the city limits, to and from which appellant furnished local transportation and is required to give and accept transfers to and from all street car lines in the city, is sparsely settled, having recently been taken into the city, and this local passenger traffic is only about 1 per cent, of its passenger business.

The purposes for which the street railway and the interurban railway were chartered are stated in our former opinion. Neither of said companies were chartered as car-' riers of freight or express. In our former opinion we say that “a train of two cars is sometimes run.” The evidence shows that four trains of two passenger cars are run every day, and that on Sundays ten or twelve trains of two passenger cars are run.

There was evidence that the noise made by the interurban cars was such that a person speaking in appellee’s building could not be heard at all in the opposite end of the building when an interurban car was passing. This court did not state as a conclusion of fact in our former opinion that appellant company only carried “light” express matter. We found the facts as to what it did carry and the manner in which the business was conducted. The evidence from which these facts were found is undisputed. Our conclusion is that .the facts shown by the undisputed evidence do not make appellant a carrier of freight as distinguished from a carrier of express. The question of whether the express matter carried was light or heavy is, we think, wholly immaterial, as only one light express car at a time was used in its transportation. We cannot conceive how it could damage plaintiff’s property more to have an express car, of the kind shown to be operated by appellant, pass along Jackson street conveying 10 articles weighing 1,000 pounds each, than it would to have such car carry 1,000 articles weighing 10 pounds each.

The statement in our former opinion as to the operation of the cars by the interurban company which was the defendant in the Mordhurst Case, cited and quoted from in our former opinion, is inaccurate in so far as it implies that the railway in that case was in operation at the time the suit was brought. The suit was brought before the railway began operation, and the character of the railway discussed in the opinion in that case was determined by the provisions of its charter and the ordinance granting its franchise. We do not think this in the least affects the force of that opinion as authority in this case.

We have carefully considered the motion for rehearing, and feel constrained to adhere to the conclusions expressed in our former opinion. It follows that the motion. should be overruled, and it has been so ordered.

Overruled.
      «K^sFoi, other'cases see same topic-and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <5=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    KNOX v. GRUHLKEY et al.

    (No. 1100.)
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 24, 1917.
    On Motion for Rehearing, Feb. 21, 1917.)
    1. Vendor and Pubcjhasek <&wkey;2GG(8) — Yen-doe’s Lien — Waiver.
    While the law gives a vendor’s lien when the purchase money for land is not paid, yet it may be waived by taking additional or independent security when it does not appear that the vendor relies on such implied lien.
    [Ed. Note.' — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 735-747.]
    2. Deeds <&wkey;31 — Designation op Grantee— Rights op Purchaser..
    Where J. G. was the party intended by the grantor, a deed to I. J. G. carried title, the fact that J. G. was the grantee being susceptible of establishment by extraneous evidence, and hence a purchaser from J. G., who received conveyance from him, took not only the equitable, but the legal, title.
    [Ed. Note. — Eor other cases, see Deeds, Cent. Dig. §§ 60-63.]
    3. Vendor and Purchaser <&wkey;265(2) — Vendor’s Lien — Transper by Grantee — Bona Eide Purchaser — Consideration.
    A depositor in a bank, having heard rumors of the bank’s, financial distress, called upon its officers with reference to his deposit. They assured Mm of the bank’s good condition, and that they could loan his money for ten per cent., and the bank'officers contended that it was loaned for him to the president of the bank, but no such loan was authorized. The depositor having instituted suit for the amount of his deposit, after the bank closed its doors, accepted a conveyance of land from the president in compromise of the suit. Held that, as the deposit was guaranteed under the state laws, he was a bona fide purchaser of the land as against the equitable lien of the grantor’s vendor.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 702-708.]
    4. Deeds <&wkey;17(l) — Consideration — Surrender op Claim.
    The surrender of a claim against a third person is a valuable consideration for a conveyance.
    [Ed. Note. — For other cases, see Deeds, Cent. Dig. §§ 31, 32.]
    On Motion for Rehearing.
    5. Vendor and Purchaser &wkey;>265(2) — Vendor’s Lien — Bona Fide Purchaser — No-TIpE.
    Whore a grantee, after having received a conveyance of land, learned, on applying to his grantor’s grantor for a correction of the original conveyance, of a vendor’s lien on the property such notice cannot relate back so as to defeat the grantee’s rights as a bona fide purchaser without notice.
    [Ed. Note. — Eor other .cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 702-708.]
    6. Vendor and Purchaser <&wkey;265(2) — Vendor’s Lien — Bona Fide Purchaser — Constructive Notice.
    That a deed reciting full payment of consideration named the grantee I. J. G. instead of'J. G., was not constructive notice to a purchaser from such grantee of any fact collateral to the objects and effects of the instrument, and such purchaser was not chargeable with constructive notice of the existence of an implied vendor’s liep note, and had the slight inaccuracy placed him on inquiry, the deed itself recited payment of the entire consideration.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 492, 702-708.]
    Appeal from District Court, Potter County; J. B. Dooley, Special Judge.
    Action by W. H. Gruhlkey against J. Garrison and W. A. Knox. From a judgment for plaintiff, defendant Knox appeals.
    Reversed and rendered as to him, and affirmed as to the first-named defendant.
    Bean & Klett, of Lubbock, for appellant. C. E. Gustavus, of Amarillo, for appellee.
   HUFF, C. J.

W. H. Gruhlkey sued J. Garrison and W. A. Knox. Personal judgment was sought against J. Garrison on a note for $814, dated September 12, 1913, payable to the order of D. M. Young on demand, no interest,, and 10 per cent, attorney’s fees. It is alleged the Bankers’ Trust Company, a corporation, was the legal and equitable owner of 80 acres of land; “that the promissory note aforesaid, executed by the defendant J. Garrison, was given in part payment for and as part of the consideration for a re-conveyance and retransfer of the title to the land and premises aforesaid from said Bankers’ Trust Company to the defendant J. Garrison, who had theretofore conveyed said land to said Bankers’ Trust Company, and by reason of the execution of said promissory note and the agreement to retransfer and reconvey said land and premises by the Bankers’ Trust Company, and in an attempt so to do there arose and now exists a valid and subsisting equitable vendor’s lien against said land and premises to secure the payment of said note;” that the note was in due course of business transferred to ap-pellee Gruhlkey, and that demand had been legally made for the payment of the note and default made; that W>. A. Knox was making some pretended claim to the land. The prayer was for judgment on the debt, and for foreclosure of the lien. .

Garrison did not answer, and judgment by default was entered against him for the debt. W. A. Knox answered, denying that there was a vendor’s lien; also alleging that by an agreement the lien was expressly waived, and if there was a lien created or intended that he (Knox) had no notice thereof, either actual or constructive; that he purchased the land in good faith, paying a valuable' consideration therefor and before any notice that the lien was claimed.

The appellee, by supplemental petition, denied the agreement to waive the lien, alleging that Knox was not an innocent purchaser for value because the consideration was for a pre-existing debt, and also that J. Garrison did not have a sufficient legal title to-the land, but that the deed from the Bankers' Trust Company was to one I. J. Garrison, and the deed to Knox was from J. Garrison in consequence of which Knox could not hold the land as a bona fide purchaser. It is necessary at this time to note the objections of the appellee to the assignments presented because there is no such statement of facts in this court which can be considered for the reason, as urged, that a duplicate was not filed thereof in the trial court; but appellee files herein a waiver to the objection on that ground, for the reason that in making the objections he had overlooked an agreement had with counsel for appellant to waive the filing of the statement in the trial court.

Assignments from 1 to. 4, inclusive, and 7 to 9, inclusive, assail the judgment and findings of the trial court, substantially to the effect that there was an implied vendor’s lien for the full amount of the note sued on, and that there was not an agreement at the time of the sale and transfer of the land to waive the vendor’s lien. The trial court finds that the agreement had was with reference to waiving an express vendors lien. The evidence does not show that an express lien in terms was mentioned; but we are not prepared to hold that there was no evidence authorizing the court to find such only was the agreement, or that the implied lien was not waived by agreement at the time of the conveyance. While the law gives a vendor’s lien when the purchase money is not paid, yet it may be waived by taking additional or independent security by the vendor when it is not made to appear that he also relied upon the lien given by law. Cresap v. Manor, 63 Tex. 485. It appears also that in the absence of an agreement to the contrary by virtue of the operation of law, that the vendor has a lien for the purchase money; but if it affirmatively appears at the time that the lien was intentionally waived, the law will not presume the lien to defeat the intention of the parties. Brown v. Christie, 35 Tex. 689; Glasscock v. Glasscock, 17 Tex. 489. However, on the findings of the court that there was no agreement to waive the implied lien, we will overrule the above assignments.

The fifth and sixth assignments present error on the action of the court in foreclosing the lien against the land as to Knox, who it is asserted was an innocent purchaser. The court held as a matter of law Knox “was not a bona fide purchaser. He took a title which bore an obvious imperfection and accepted an irregular conveyance.” The imperfection referred to was that in the deed of reconveyance it recites that it was conveyed to I. J. Garrison, as grantee, and the deed to Knox was from J. Garrison and wife. It is contended that Knox knew that J. Garrison was the party with whom he was dealing while the deed was to I. J. Garrison, but that he took the conveyance anyway.

The Bankers’ Trust Company, at a meeting of its stockholders, at which J. Garrison was present, passed a resolution September 11, 1913, to the effect that the company, by its president, attested by its secretary, deed and deliver back to each stockholder his land, notes, or cash put into the company for stock, requiring such stockholder to pay his pro rata share of an amount necessary to reimburse such stockholders who paid cash in full, and to include an additional amount to pay the actual and necessary running expenses of the company, the amount additional to be determined by a finance committee, which was to report on the 12th day of September, 1913. The finance committee reported to the adjourned meeting that 4 per cent, of the face value of the stock would be necessary to meet the requirements of the above resolution, and at the adjourned meeting of the directors the following resolution was passed:

“Amarillo, Texas, 9/12/1913.
“At an adjourned meeting of the directors of the Bankers’ Trust Company, which met at 11 a. m. September 12, 1913, pursuant to adjournment of September 11th, at the Elmhirst Hotel, Amarillo, Texas, upon motion of E. H. Steed, seconded by J. R. Wrather, that each person who had put property into the company for stock be deeded back his land, or given back his property as soon as he pays his pro rata of the expenses as audited by the finance committee, amounting to 4 per cent, of the face of his stock, to be paid to D. M. Young, as an individual, either in cash or a note approved by the finance committee, payable on demand, without interest, should the amount so collected be more than sufficient to pay claim against the company as stated in the motion made by J. J. Orume in the meeting at 4:30 p. m. on September 11, 1913, then in that event the amounts so remaining are to be paid back, pro rata to the person who paid in the money to said D. M. Young, deed to be made and delivered as soon as cash or notes has been paid. Motion carried unanimously. E. M. Curyea, President.
“Attest: D. M. Young, Secretary.”

On the same day (September 12, 1913) the Bankers’ Trust Company conveyed the land by deed, reciting the consideration therefor to be $1,600 paid by J. Garrison, but the deed recites that the conveyance was to I. J. Garrison, warranting the title to I. J. Garrison. It appears from the testimony and the face of the instrument copied in the record, that the deed, in reciting the payment of the consideration that) it was made by I. J. Garrison, but that after writing it, the I. was erased by drawing lines across it. The demand note sued on was signed at the same time by J. Garrison and the deed delivered to him. It was claimed that he controlled something over $20,000 of the stock in the corporation. He, however, contending that only $3,000 was his and the balance his son’s (L. L. Garrison). It appears that J. Garrison had conveyed -this land to the Bankers’ Trust Company, with perhaps other lands, for the stock issued to him. The testimony of all the witnesses is to the effect that J. Garrison was to get this land back under the resolution above set out. The secretary, D. M. Young, testified:

“When J.. Garrison turned the note over to me, the company in turn delivered this deed to the land to him. There must have been a kind of difference in the names. It is I. J. Garrison there, and I notice that the I. has been blotted out since we signed and delivered it to him in one place, but this I. J. Garrison was supposed to be the same man as J. Garrison. The man we have sued in this case is the same person as I delivered the deed to, and will say in connection that Mr. Garrison or some attorney — X have forgotten now whether it was Garrison — wrote me and sent me a corrected deed and asked me to sign it to correct that defect, and I wrote that upon the payment of the note I would be glad to do that.”

J. Garrison surrendered his stock to the Bankers’ Trust Company, which was canceled. The .evidence in this case shows the deed was drawn by Judge Humphres, as an attorney, and was taken from his office to the meeting of the officers of the corporation, by J. Hammons, and there signed and delivered to J. Garrison. There is not a word of evidence that we can find that there is such a person in existence as I. J. Garrison. The substance of all the evidence is that it was intended to be a conveyance to J. Garrison that he was the only'party intended. There can be no question but the land was conveyed to J. Garrison. He had conveyed the land to the corporation for stock therein. It had agreed to reconvey it to him, and he had agreed to take such reconveyance, give his note for $814, which he then executed and delivered to the company, together with his stock, which was canceled. There is no evidence the deed was to be made to any one else or to I. J. Garrison, or that there is such a person. The whole proceeding shows that it was a mistake in writing into the deed the letter I. There is no outstanding title shown. The identity of I. J. Garrison is established beyond cavil. The deed was to him, and conveyed the title to him, and when the grantee therein is shown to be J. Garrison, the legal title vested in him. The appellee, in fact, alleges that fact, in the statement that the note was executed by J. Garrison, “for a reconveyance and retrans-fer of the title to the land and premises aforesaid from said Bankers’ Trust Company, to the defendant J. Garrison, who had theretofore conveyed the land to said Bankers’ Trust Company." Similarity of names is ordinarily sufficient evidence of the identity in the chain of purchase, and in the absence of evidence casting doubt upon the identity of a party to a conveyance of land it ought to be sufficient in every case. Instead of the evidence casting doubt upon the identity of the grantee in this case, it demonstrates that J. Garrison is the grantee in the deed. 'In the case of Chamblee v. Tarbox, 27 Tex. 144, 84 Am. Dec. 614, there was a conveyance to Jane Carroll, and a subsequent conveyance from Jane M. Tarbox and her husband,-- Tarbox. This, with the recitals in the deed, was held sufficient proof Of identity óf Jané Carroll with Jane M. Tarbox, in the absence, of evidence to the contrary. [Tliis rule has .been followed in a variety of cases in which there have been misnomers and mistakes in names, initials, and the like. Wilkinson v. Schoonmaker, 77 Tex. 615, 14 S. W. 223, 19 Am. St. Rep. 803; Ballard v. Carmichael, 83 Tex. 355, 18 S. W. 734; Smith v. Gillum, 80 Tex. 120, 15 S. W. 794; Railway Co. v. Haynes, 44 Tex. Civ. App. 272, 97 S. W. 849; Kane v. Sholars, 41 Tex. Civ. App. 154, 90 S. W. 937; Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 982; Robertson v. Du Bose, 76 Tex. 1, 13 S. W. 300; Leland v. Eckert, 81 Tex. 220, 16 S. W. 897.

The case of Staak v. Sigelkow, 12 Wis. 259, has announced what we believe to be the rule governing this case so fully that we believe a quotation from it proper.. Arnold Staak, through the agency of Mansfield, purchased the land in that case, paying the full consideration. Mansfield, either by mistake or intentionally, took the conveyance in the name of Louis Staak instead of Arnold Staak. Afterwards Staak died, but before his death he delivered the deed to Mansfield for the purpose of procuring a loan of $100 on the land, which it appears Mansfield never did, but a year after Arnold Staak’s death, Mansfield 'sold the land to Sigelkow and executed and delivered to him a conveyance signed - and acknowledged by himself, in the name of Louis Staak. The court there said:

“It is obvious that the first question to be determined is whether, by virtue of the deed executed to Louis Staak, the title of the land passed to Arnold Staak, the intended grantee. We are clearly of the opinion that it did. It is to be observed that the whole transaction shows that he was the person really intended. Mansfield was his agent for the express purpose of buying the land; he furnished the purchase money; the deed, soon after its execution, came into his possession; his surname was correctly set forth in the deed, and so far he was properly described by it; and there was no such person in existence as Louis Staak for whom it could have been intended. These circumstances seem to place the intent beyond a doubt, and the question arises whether the disagreement or mistake in the baptismal or Christian name can be explained by parol testimony, so as to give effect in law to the deed. We think it may; that it is a latent ambiguity which is susceptible of explanation by parol proof. It is certain that the deed upon its face gives rise to no doubt or uncertainty, which proves that the ambiguity is latent and not patent. But on looking around for the person of the grantee to whom to apply it, a difficulty arises; we find no such person in existence as Louis Staak; and to explain or remove the difficulty or uncertainty thus brought in by the introduction of extrinsic evidence, further proof as to the person really intended may be received. Such evidence, when admitted, does not tend to impeach or contradict the deed, but to support and uphold, it by removing the doubts arising from external circumstances, and applying the grant to the person for whose benefit it was intended.”

It is contended, by the appellee that the deed to Garrison only evidences that a J. Garrison had. an equitable title, and that when Knox took a deed from J. Garrison he obtained an equitable title, if anything, and as such purchaser he could not claim to be a purchaser without notice, as he would in that instance he charged with all outstanding equities. It has been held that the transfer of a land certificate to, and location of the land for, John Hanaford and upon which a patent was thereafter issued to John Hans-ford did not change the legal title to Hana-ford to a mere equitable title because of the mistake in writing the name in the patent. Hanaford v. Morton, 22 Tex. Civ. App. 587, 55 S. W. 987.

So it has been held the same result will follow where a patent has issued in the name of the grantee of the original certificate who had assigned the certificate before a patent when the assignment is such as to estop the grantor. Humphreys v. Edwards, 89 Tex. 512, 36 S. W. 333, 434; Culmell v. Borroum 13 Tex. Civ. App. 458, 35 S. W. 942.

Por a better reason, it occurs to us where parties enter into a contract to convey for a specific consideration which is paid and a deed executed and delivered to the party intended, and no other was intended that it will vest the identified vendee with the legal title, regardless of the mistake in writing the name. It would appear that the trial court was of the opinion that the error in the deed was sufficient to put the purchaser upon notice of all outstanding equities. We cannot agree with this position. All that Knox was required to ascertain in purchasing the land was that the grantee in the deed was identical with his grantor, J. Garrison, and when he learned that fact he was not required to go further. “Notice of this defect was not notice of appellees’ claim to the lot, and they could derive no benefit by reason thereof.” Allen v. Anderson, 96 S. W. 54. As we understand the findings of the court, Knox had no notice of the vendor’s lien when he purchased the land, and that he was a purchaser for value.

We believe the evidence is conclusive that he is a bona fide purchaser under the testimony and under the findings. The facts showed that he paid value. He had on deposit in the Lockney State Bank $1,500. He heard rumors of the bank’s financial distress and called upon its officers with reference to his money. They assured him the bank was in good condition, but that they could lend his money out for him for 10 per cent. J. Garrison was the president of the bank, and his son, J. C. Garrison, its cashier. It is contended that the cashier loaned the money to J. Garrison for Knox. The evidence does not show that there was a note in evidence given for this loan or in fact in whose name the loan was made. Knox brought suit against the bank, J. C. Garrison and Will Brewster, for his money, arid therein also alleging fraud and conspiracy to loan his money to J. 0. Garrison and Brewster. After this the bank was taken charge of by the •state authorities, and after its doors were closed in order to compromise the suit by Knox, J. Garrison deeded the land to him in settlement of his claim against the bank and all parties. This was the consideration for the land. It will not be contended the bank was not indebted to him on the deposit and liable therefor. If the bank loaned the money it was its money. While Garrison testified and claims he borrowed the money from Knox, there was not any evidence of the fact that it was a loan from Knox to him, except the mere claim that his son was acting for Knox in making the loan. The deposit in the bank by Knox the evidence does not show to have been a special deposit or that the bank was acting as a mere bailee of the money. Giving up the claim against the bank was certainly a valuable consideration ; under the state banking laws, his deposit was guaranteed. The surrender of a claim against third parties is a valuable consideration. Smith v. Westall, 76 Tex. 509, 13 S. W. 540; Swenson v. Seale, 28 S. W. 143.

Again, it is contended by appellant that his claim against the bank was barred by the statute of limitation when he first learned of the assertion of the vendor’s lien by ap-pellee. The evidence, we believe, will support this contention. Tobin v. Benson, 152 S. W. 642.

We believe the court was in error in foreclosing the lien on the land. The judgment Will be affirmed as to J. Garrison, but reversed and here rendered that the vendor’s lien set up be not foreclosed as to Knox and the land in question; and that Knox recover his costs in this court and the court below.

Affirmed as to Garrison, and reversed and rendered as to Knox.

On Motion for Rehearing.

It apparently is the contention of appellee that because Knox, after purchasing the land, asked the Bankers’ Trust Company for a corrected deed and instituted a suit to correct the deed, and was also, at that' time, informed if the note executed by Garrison for the land was paid the deed would be corrected, that this would constitute notice. Notice after the purchase cannot act retroactively, so as to defeat an already vested title acquired by a bona fide purchaser.

It is sought to show that Knox had notice of the existence of the implied vendor’s lien. The deed executed shows on its face that the purchase money was paid. There is no evidence on the face of the deed that the purchase money was unpaid. The trial court found that there was no actual notice to Knox that the purchase money remained unpaid, but finds Knox was not a bona fide purchaser, because he took a title with an obvious imperfection and accepted an irregular conveyance. He must, therefore, have based his conclusion upon' constructive notice conclusively presumed. This obvious, irregular conveyance and title does not disclose that it was so on account of nonpayment of the purchase money, but if irregular, that there was either a clerical error in the deed, or that the legal title was in some one else. When it was ascertained that it was a clerical mistake, that the deed conveyed the land to the vendor of Knox, there ,was then not only an equitable title in his grantor, but also the legal title. There is no presumption which follows from this mistake, conclusive or otherwise, that there was notice to Knox of the implied lien.

. There are well-recognized exceptions to the general rule of constructive notice through title papers. The purchaser has no constructive notice contained in a recital “from which other persons do not derive any rights in such property; he is not charged with notice of any fact collateral and foreign to the objects and effects of the instrument as a conveyance of an estate or interest to himself.” The rule is not extended to recitals or statements contained in the instrument which deals with another subject-matter not connected with the direct series of title deeds by reference. As to such the purchaser is not charged with constructive notice. 2 Pom. Eq. Jur. § 629. The appellee could not have derived any right in the property by the recital that the conveyance was to I. J. Garrison instead of J. Garrison. This mistake was not such as to put a reasonably prudent man upon inquiry, and of such a character as would lead to a discovery of the main fact; that is, the existence of an unpaid purchase-money note, by the exercise of proper diligence in pursuing the inquiry as to whether J. Garrison was the person to whom the land was conveyed. College Park, etc., v. Ide, 15 Tex. Civ. App. 273, 40 S. W. 64. The Bankers’ Trust Company by its deed to Garrison by the recital therein acknowledged the receipt of the full consideration in hand paid, thereby satisfying any inquiry that might otherwise have been prosecuted. Eylar v. Eylar, 60 Tex. 315. A mistake in the initial of the name of the grantee would not excite inquiry, as to whether the purchase money was paid, and it does not occur to us that a reasonable and prudent man would be put upon the inquiry for such a fact.

The motion is overruled.
      oilier cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLY, O. J.

text:
    ANDREWS v. YORK.
    (No. 5784.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1917.
    Rhearing Denied Feb. 28, 1917.)
    1. Railroads <&wkey;274(l) — Injuries to Per< sons Near Track — Negligence—Obstruction in Passageway.
    A railroad is liable for negligently leaving an unlighted railway velocipede in a narrow passageway at its station which caused injuries to a policeman who fell over it.
    P3d. Note. — For other cases, see Railroads, Cent. Dig. § 868.1'
    2. Damages <&wkey;143 — Pleading — Eppect on Injuries.
    In an action for personal injuries, an allegation in the petition that plaintiff would probably lose Ms arm, by reason of the injury is a proper allegation of the effect of the injury.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 433.]
    3. Appeal and Error &wkey;>742(l) — Assignments op Error — Statement oe Evidence-Proposition.
    An assignment of error in submitting the issue of pain and mental anguish because there was no evidence to sustain the issue, which is not followed by any statement of the evidence, and is supported only by the proposition that damages for mental suffering cannot be recovered unless there has been physical injury, does not require a reversal of the judgment, where there was ample evidence of physical injury. ■ [Ed. Note. — For other cases, see Appeal and ETror, Cent. Dig. § 3000.]
    4. Trial <&wkey;255(ll) — Instructions—Necessity op Request — Measure op Damages.
    In an action for personal injuries, defendant cannot complain of the defendant’s omission to instruct the jury as to the measure of damages where he made no request for such an instruction.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 637.]
    5. New Trial <&wkey;44(l) — Misconduct op Jurors — Quotient Verdict.
    Where one juror stated at the hearing on the motion for new trial that the jury agreed to render a quotient verdict, but his statement was denied by the other eleven jurors, there was no abuse of the court’s discretion in overruling a motion for new trial, since the trial court must pass upon the weight of such evidence.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80, 105.]
    6. Trial &wkey;>315 — Deliberations op Jury-Quotient Verdict.
    An agreement’ by jurors to write upon separate papers the amount for which each juror desired to find and use such papers merely as a working basis is not improper.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 740-742.]
    7. New Trial <&wkey;44(l) — Discretion op Trial Court — Misconduct op Jury.
    The determination whether misconduct of juries vitiates their verdicts rests in the discretion of the trial judge, and unless an abuse of such discretion appears the appellate courts have no authority to interfere therewith.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 80, 105.]
    8. Appeal and Error &wkey;>731(l) — Assignment op Error — Excessive Damages — General Assignment.
    An assignment of error which merely asserts that a verdict for plaintiff in an action for personal injuries appears from the evidence to be grossly excessive is too general to be considered, especially when followed by a proposition which is indefinite and uncertain and which seems to assert that unless the earning power of plaintiff is affected he cannot recover for mental suffering.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. § 3017.]
    Appeal from District Court, Hidalgo County; V. W. Taylor, Judge.
    Action by J. A. York against Frank Andrews, as receiver of the St. Louis, Browns-Tille & Mexico Railway Company. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    Claude Bollard, of Houston, and E. H. Crenshaw, Jr., of Kingsville, for appellant. John P. Gause, of Mercedes, and Arnold, Cozby & Peyton, of San Antonio, for appel-lee.
   PLY, O. J.

This is a suit for damages arising from injuries alleged to have accrued through the negligence of appellant as receiver of the St. Louis, Brownsville & Mexico Railway Company, in leaving a velocipede in its passway, over which appellee, a police officer, fell, causing injury to his arm and causing his pistol to he .discharged and inflicting a wound upon his body. The cause was tried by jury, resulting in a verdict and judgment in favor of appellee for $2,375.

It was alleged in the petition that appellant had what is called a certain “walkway” for the purpose of loading and unloading freight, express, and passengers, “and over which walkway the public generally passes to and from as a part of the street or highway leading from all sides into and from said depot.” It was further alleged:

“That defendant owned and operated a vehicle sometimes called a velocipede, railway motorcycle, or hand car propelled by gasoline, which was used by the inspectors on the tracks of said road, and when not in use, said vehicle was taken off the track and stored; it consisted of a motor and the extension rod the width of the railroad track, connected with a wheel with a larger wheel under the motor; that on or about the 21st day of March, A. D. 1914, the defendant, by his servants, employés, or other persons authorized by the defendant to use said vehicle, instead of storing same in a safe place, carelessly and negligently placed it across said walkway, and carelessly and negligently allowed same to remain there during the night, and carelessly and negligently failed to place a light over said obstruction, as was his duty to do to protect and warn any and all persons walking on said walkway from injury or damage.”

It was further alleged that appellee, while walking along said passageway in the night, fell over the unlighted velocipede and when he fell his pistol, which he was carrying in discharge of his duty as chief of police of Mercedes, was discharged and wounded him in the body. It was also alleged that when he fell he bruised his leg and arms, and especially his left arm at or about the elbow, which caused a malignant sore on said left arm known as sarcoma, on account of which he will probably lose his arm. The proof sustained the allegations.

The first assignment of error, which states that there was neither pleading nor proof to justify a submission of any issue as to the damages sustained by appellee, is overruled. The allegations are ample, and they are sustained by the proof. Appellant was guilty of negligence in allowing an unguarded velocipede to lie at night in a passageway built for and used by the public, and is liable for the damages arising from such negligence.

If it was not alleging the effect of the injuries to state that appellee would probably lose his arm by reason of the injury, it would be difficult to conceive how it could be done. A physician swore that it would be necessary to amputate the arm to get rid of the sarcoma, and if it was not removed it would eventually destroy his life. None of the authorities cited offers any ground for condemnation of the pleadings herein. Appellant is attempting, through the first assignment of error, what should have been sought through demurrers in the trial court.

The second assignment of error assails the action of the court in submitting the issue as to whether appellee suffered pain and mental anguish; the ground of attack being that there was no evidence to sustain such issue. The assignment is not followed by any statement of the evidence sustaining it, nor is there any proposition raising the point. The only proposition is that damages for mental suffering cannot be recovered unless there has been physical injury. The evidence clearly shows the physical injury.

The third assignment of error complains that the court failed to give the measure of damages proper in such cases, and therefore should not have submitted the issue of the amount of damages to the jury. If the court erred in not defining the measure of damages, it was an error of omission, and the error should have been cured by a request to give the measure of damages. This appellant failed to do, and cannot be heard now to complain of the omission. Oil Company v. Malin, 60 Tex. 645; Ins. Co. v. Jefferson Ice Co., 64 Tex. 578; Railway v. Leak, 64 Tex. 654; Cockrill v. Cox, 65 Tex. 669.

One of the jurors stated, in a hearing on the motion for new trial, that the jury agreed that each of .the jurors would place the amount of damages he thought appellee should receive on a piece of paper, and that the aggregate amount divided by 12 should be the verdict. Ten jurors testified that no such agreement was made, and the eleventh stated that the agreement that the quotient arrived at by dividing the aggregate amount by 12 should be the verdict was not suggested until the quotient had been obtained. The court in his qualification of the bill of exceptions stated:

“That, after the court had heard all the jurors testify as to the manner of arriving at their verdict, court was of the opinion that the verdict was reached in the manner testified by Foreman Allen and ten other jurors, and not like Ed. Towell seemed to think.”

It would be going to a dangerous extent to hold that a single juror could destroy the verdict of a jury of which he was a member, which would be the effect of a holding that the trial judge must accept his version of how a verdict was reached in spite of the positive denial of the other eleven jurors. Some one must be clothed with authority to pass upon the credibility of the testifying jurors, as in the case of other witnesses,, and no one is in ft position to pass upon sucli credibility except tbe trial judge.

The agreement of the jurors to write upon separate papers the amount for which each juror desired to find and use it as a working basis was not improper. Traction Company v. Evans, 152 S. W. 707; Railway v. Thomas, 175 S. W. 822.

The statutes and decisions lodge the discretion as to misconduct of juries vitiating their verdicts in the trial judge, and, unless an abuse of such discretion appears from the record appellate courts have no authority to interfere therewith. iRiev. St. art. 2021; Kalteyer v. Mitchell, 102 Tex. 390, 117 S. W. 792, 132 Am. St. Rep. 889.

The fifth assignment of error seeks to attack the verdict for exeessiveness, but it and the proposition thereunder are too general to be considered. It was never contemplated that an assignment which merely asserts that a verdict appears from the evidence to be “grossly excessive” should be considered. Especially would this be true when followed by a proposition which is indefinite and uncertain and which seems to assert that, unless the earning power of a plaintiff is affected, he cannot recover “for mental suffering and pain,” no matter how much he may have suffered. Certainly no such proposition can be sustained. Some of the cases cited in support of the proposition cannot be found in the book and pages referred to, and the others have no reference to the proposition. No evidence is pointed out to show excess in the verdict, if the assignment was sufficient; the only statement being copies of issues 7 and 8 and the answers thereto.

The judgment is affirmed.
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