author: DUNKLIN, J.

text:
    BOWERS et al. v. MACHIR et al.
    (No. 8593.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 2, 1916.
    Rehearing Denied Jan. 6, 1917.)
    1. Municipal Corporations <®=»697(3) — Obstruction op Alley — Injunction—Parties.
    In an action to enjoin the obstruction of an alley by closing it at each end, the city, which had nothing to do with the closing, and which passed an ordinance on application of the owners merely to abandon any claim to the alley as a public alley of the city and to allow the owners of the adjacent lots to close it, was not a necessary party, even if a proper party.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1504; Dec. Dig. <§=> 697(3).]
    2. Dedication <§=>53 — Plat — Streets — Rights of Purchasers.
    Where an owner of land plats it into lots, public streets and alleys, and sells lots by reference to the plat, the purchaser of a lot acquires, as appurtenant thereto, the right to use the streets so dedicated, which right is a property right entitled to the same protection as the title to the land, and which is not limited to the streets on which the lots of such purchaser are situated.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 96; Dec. Dig. <@==>53.3
    3. Municipal Corporations <§=>657(2) — Closing Alley — Charter and Statutory Powers.
    Under Sp. Acts 31st Deg. c. 31, sube. 4, § 1, giving the city of Ft. Worth exclusive power over its streets and alleys, with express power to vacate or close them, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 854, vesting in the city exclusive control over streets, alleys, etc., with power to vacate an alley in a block upon written application of the owners of the lot, to thereupon revert and become the property of the owners, the city had the right to vacate a dedicated public alley, but not to close it.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 722,1429; Dec. Dig. <§=>657(2).]
    4. Municipal Corporations <®=>663(1) — Vacating Alley — Compensation.
    In such case, the city could not destroy the special property rights of lot holders in having the alley left open, without making itself liable for compensation therefor.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1438; Dec. Dig. <§=> 663(1).]
    5. Municipal Corporations <§=>657(1) — Alley — Vacation—Public Nuisance.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 844, 845, authorizing city of Ft. Worth to pass ordinances declaring what shall constitute a nuisance, and empowering it to abate the same, the city’s closing of an alley could not be justified on the theory that it was a nuisance, where the petition of property owners in the block to have the alley closed did not allege that the alley was a public nuisance, and where the evidence offered did not show that it was a nuisance per se, or that the city’s commissioners found it such when they passed the ordinance permitting its closing.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 844, 1429; Dec. Dig. <§=>657(1).]
    6. Municipal Corporations <§=>657(5) — Closing Alley — Ordinance—Record.
    If an ordinance, giving the owners of the adjacent lots permission to close an alley, was based on the fact that the alley was a nuisance, as well as by reason of the fact that the owners of the property in the block had filed an application therefor, that should appear in the record.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 722, 1429; Dec. Dig. <§=>657(5).]
    7. Municipal Corporations <§=>269(1) — Streets and Alleys — Nuisance—Improvements.
    Where a city was expressly authorized by statute and by its charter to improve an alley by filling it so as to prevent water from standing therein, it was its duty to do so if the public health demanded it.
    [Ed. Note. — For other cases, see Muncipal Corporations, Cent. Dig. §§ 7Í8, 720, 722; Dec. Dig. <§=>269(1).]
    8. Municipal Corporations <§=>663(1) — Interest in Alley — Compensation.
    A city’s neglect of its statutory and charter duties to fill in an alley to prevent water from standing therein if the public health demanded it would not furnish a lawful excuse for depriving, a lot owner of his special interest in the abutting alley acquired by purchase, without compensating him therefor.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1438; Dee. Dig. <§=> 663(1).]
    9. Municipal Corporations <§=>663(1) — Closing Alley — Injunction.
    Without a showing of the necessity for closing an alley on the ground that it was a menace to public health or safety, the city would have no right to close, or permit it to be closed, an'd an injunction would lie in favor of an owner having a special property interest in keeping the abutting alley open.
    [Ed.. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1438; Dec. Dig. <§=> 663(1).]
    10. Municipal Corporations <§=>663(1) — Closing Alley — Special Interests — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 854, the city of Ft.. Worth, as trustee for the public, might, if it saw fit, close an alley for the special benefit of owners of property in the block, and no one would have a cause of action therefor, unless he showed some special interest in the alley additional to that enjoyed by the public; but one having a property interest in keeping the abutting alley open, acquired by purchasing with reference to the plat so as to furnish more convenient access to the rear of his lot, had such special interest.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1438; Dec. Dig. <§=> 663(1).]
    11. Eminent Domain <§=>69 — Purpose of Taking — Compensation.
    The constitutional denial of any legislative power to authorize the taking of one’s property for public benefit without compensating him therefor applies with special force when the taking is for the sole purpose of donating it to a few individuals.
    [Ed. Note. — For other eases, see Eminent Domain, Cent. Dig. §§ 171-179; Dec. Dig. <§=> 69.]
    12. Appeal and Error <⅜=>500(1) — Record-Matters to be Shown — Order on Motion.
    Where the record in a suit to enjoin obstruction of alley by adjacent owners contained no order upon a motion to abate pending the determination of a similar suit, the assignments of error for failure to sustain the motion would be overruled.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 2295; Dee. Dig. <§=>500(1).]

      Appeal from District Court, Tarrant County ; It. B. Young, Judge.
    Suit for injunction by A. L. Bowers and others against C. C. Machir and others. Judgment for defendants, and plaintiffs appeal.
    Reversed and remanded.
    Thompson & Barwise, of Ft. Worth, and J. M. Chambers, of Dallas, for appellants. Mercer, AVall & Rouer and Holder & Baton, all of Ft. Worth, for appellees.
   DUNKLIN, J.

On May 25, 1904, J. A. Lee, who was the owner of block 8, of the Field Welsh addition to the city of Ft. Worth, subdivided and platted said block into lots, streets, and alleys, a plat of which subdivision was duly recorded in the Deed Records of Tarrant County. Following is a copy of said plat:

The following is the written declaration of Tee with reference to the plat, which was filed for record as a part of the plat:

“Know all men by these presents that I, J. A. .Lee, the owner of block No. 8 of the Field-Welsh addition to the city of Fort Worth, Tar-rant county, Texas, do hereby adopt the foregoing plan for subdividing same, to be known as ‘Lee’s subdivision of block No. 8 of the Field-Welsh addition’ to the city of Fort Worth, Texas, and do hereby dedicate to the use of the public the streets and alleys as shown thereon, except that part of the alley marked ‘Reserved’ lying west of lots 1 to S. I also reserve to myself the right to use the dirt from Lake street that is cut thereon when said street is graded. I reserve to myself the right to cross the streets and alleys or to run on said streets or alleys shown on said plat with water pipes from the well now located on lot 1.”

Thereafter, on January 11, 1906, Lee sold to J. C. McKain lots 25 and 26 shown in the plat, said lots ■ being described by reference to the recorded plat. On June 10, 1907, Mc-Kain and wife sold the lots to Hattie L. Maiming, who, on April 7, 1909, sold the same to A. L. Bowers. In each of the two deeds last mentioned the property was described in the same manner and with reference to the same plat, and both of those deeds were duly recorded in the record of deeds of Tarrant county. On December 5, 1911, Miss Erna E. List purchased from the heirs of J.' A. Lee, deceased, lot 34 shown in said plat, and in 1914, Mrs. Pearl Machir purchased lot 35 from the same heirs. During the summer of 1915, the board of commissioners of the city of Ft. Worth passed the following ordinance:

“Be it ordained by the board of commission- • ers of the city of Fort Worth:
“Section 1. That a 20-foot alley fronting on South Lake street in block 1000, and lying between lot 34 and lot 35 in block 8 of J. A. Lee’s subdivision of Fieid-Welsh addition to the city of Fort Worth, be and the same is .hereby ordered closed and the right to the use of said alley is hereby granted and vested one half to the owner of lot 34 and one half to the owner of lot 35, so that the owners of said property will each control and own up to a line drawn through the center of said alley.
“That this ordinance shall take effect and be in force from and after its passage.”

On July 1, 1915, soon after the passage of said ordinance, O. O. Machir, husband of Mrs. Pearl Machir, and Miss Erna E. List caused a fence to be erected across the east end of the 20-foot alley, described in the city ordinance, and also put in a sidewalk and curbing across the west end of the alley, and on the east line of Lake street, and at that time Miss List was the owner of lot 34 and Mrs. Pearl Machir the owner of lot 35. Later, Miss List sold lot 34 to her mother, Mrs. Alice M. List. On June 13, 1916, A. L. Bowers, as the owner of lots 25 and 26, joined by his tenant, O. M. Harris, instituted this suit in the district court against C. O. Machir, Miss Erna List, and Mrs. Alice M. List, to require the removal of the obstructions so placed across the two ends of the 20-foot alley mentioned above and to restrain any further obstruction of the same. In connection with such permanent relief, plaintiff also prayed for a temporary writ of injunction for such relief pending the suit. On June 13, 1916, the application for the temporary writ was heard and denied by the district judge, such, action on Ms part being predicated upon the following findings of fact, and conclusions of law:

“(1) The passway in question was dedicated to the public on May 25, 1904, by J. A. Lee by making and recording the plat as alleged, by the plaintiffs, and the same had been continuously used t>y the public as a passway until it was closed by defendants Machir and Erna List, about July 1, 1915.
“(2) Plaintiffs and defendants all hold, under the said J. A. Lee as common source of title, as alleged by plaintiffs, and defendants each had notice and knowledge of the public character of the passway at the time they respectively acquired their titles to the adjacent lots.
“(3) Defendant Erna List had sold lot 34 to her mother, Alice M. List, prior to the filing of this suit, but after same had been closed, and had delivered possession thereof to her.
“(4) Upon a petition of defendants and others, of which plaintiffs had no notice, the city commission of the city of Et. Worth, a few days prior to said closing, enacted an ordinance closing said passway, and afterwards upon petition of plaintiffs and others refused .to repeal said ordinance.
“As a matter of law, I conclude:
“1. The city of Et. Worth is a necessary party to this action.
“2. No right of action is shown against defendant Erna List because of her having disposed of the property adjacent to the passway in question, and has no further interest therein. .
“(3) The city of Et. Worth, by the terms of its charter, had power to close said passway, and the ordinance so declaring is valid and binding upon plaintiffs, and they are therefore not entitled to the injunction prayed for.”

From the order so made plaintiffs have prosecuted this appeal.

As noted already, the alley was closed by Machir and Erna List. The city had nothing to do with the closing. The evidence shows that the ordinance was passed upon the application of the owners of property fronting on Lake street between Dashwood and Rosedale streets, and it is shown conclusively that the action of the commissioners in passing it was merely to abandon any claim on the part of the city to the alley as a public alley of the city, and to allow the owners of lots 34 and 35 to close it. The mere passage of the ordinance did not give any cause of action against the city such as is asserted by the plaintiffs in the present suit. The closing of the alley, if wrongful, and that alone, gave rise to a cause of action in plaintiffs’ favor, if they have a cause of action for such wrongful closing. Hence the conclusion of the trial judge that the city of Et. Worth was a necessary party to the suit was erroneous, even though it could be said that the city was a proper party. Burton Lumber Co. v. Houston, 101 S. W. 822; State v. Franklin, 133 Mo. App. 486, 113 S. W. 652.

By other assignments appellants insist that the trial judge erred in holding, in effect, that the city ordinance was binding upon the plaintiffs, and gave to the defendants the legal right to close the alley. It is well settled by the decisions of this state, and of many other states as well, that if the owner of land lays out and plats the same into lots and public streets and alleys, and sells such lots by reference to the plat, the purchasers of such lots acquire as appurtenant thereto the right to use the streets so dedicated, which right is a property right acquired by purchase, and entitled to the same protection as the title to the lots themselves, and this right is not limited to the streets on which the lots of such purchasers are situated. Oswald v. Grenet, 22 Tex. 94; Lamar County v. Clements, 49 Tex. 347; Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924; Corsicana v. Anderson, 33 Tex. Civ. App. 596, 78 S. W. 261; Stevens v. City of Dublin, 169 S. W. 188; Kalteyer v. Sullivan, 18 Tex. Civ. App. 488, 46 S. W. 288; Elliott on Roads and Streets (3d Ed.) §§ 129, 130, 131, 132.

Appellees insist that, while the dedicator of such a plat is estopped to deny the purchaser the right to have the streets and alleys so dedicated kept open, the city, as trustee for the public at large, has the right to close such streets whenever the interest of the public demands it. In other words, they insist, in effect, that the action of the city in ordering the alley closed was a reasonable regulation within the power of the city commissioners. By section 1, c. 4, p. 246, Special Laws of the Legislature of 1909, the city of Ft. Worth is given exclusive power and control over the streets and alleys of the city, with express power to vacate or close the same. And by article 854, Vernon’s Sayles’ Texas Civil Statutes, any incorporated city or town in the state is also vested with the exclusive control over streets, alleys, and public grounds of the city, with power to alter or vacate an alley in a block within the city upon the written application of the owner of the block, or if there be more than one owner, then upon the written application of all of the owners thereof, uniting in such application. While this statute authorizes the vacation of an alley, it does not authorize the closing of the same. Stevens v. City of Dublin, 169 S. W. 188. It is further provided in that statute that when such an alley is thus vacated, it shall “thereupon revert to and become the property of the owner of the block of which it was a part, or if more than one, then to the owners of the adjoining lots therein, each extending to the center of the alley so vacated.” The provision so quoted from the statute does not appear as a part of the city charter, and it would seem that the city in passing the ordinance quoted above did so under and by virtue of this, article of the statute. The defendants in the suit claim no other right to close the alley except by virtue of the permission of the city so to do as expressed in the ordinance quoted. In other words, they are committed to the proposition that if the city did not have the right as against the plaintiffs to authorize them to close the street, then they had no such right. As noted already, the facts all show that by the ordinance the city commissioners had no other purpose than the election to vacate the alley as a public alley of the city, and to disclaim any responsibility on the part of the city by reason of its being Kept open as a passway available to the public. It had no purpose to close the alley, but merely to give permission to the defendants to close the same, and to vest in them title thereto so far as it was in the power of the city so to do. There is no doubt that the city had the right to vacate the alley as a public alley, but that if it did so, it had no power to prevent the use of the way as a street by those who had a legal right to have it left open for1 such use. Gilder v. City of Brenham, 67 Tex. 351, 3 S. W. 309. And if the plaintiffs had a special property right in having the alley left open, the city could not, in any event, destroy the same without making itself liable for compensation therefor. Lumber Co. v. Railway, 104 Tex. 15, 133 S. W. 247, 36 L. R. A. (N. S.) 662, Ann. Cas. 1913E, 870. In the case just cited it was held that the appropriation of a public street by a railway company, acting under authority of the city so to do, is a taking of property of an abutting lot owner who also owns the fee-simple title to the street as distinguished from a mere damaging thereof, and may be restrained by injunction, unless compensation is paid, or secured, in advance of such taking, as required by article 1, § 17, of the Constitution. It was further held in that case that if the owner of the abutting lot does not own the fee-simple title to the street, an injunction will not lie to require payment in advance of compensation for the damage done to the lot, because closing the street would not be a taking of property within the meaning of the Constitution, but for such interference with access to the lot the owner would be entitled to recover damages. To the same effect is Stevens v. City of Dublin, 169 S. W. 188, and other authorities therein noted. In the case last cited this court held that an injunction would lie to restrain the closing of a street to the injury of abutting property, in the absence of a showing that such closing was necessary for the preservation of the safety of the citizens generally, even though it would be conducive to the safety of children attending a nearby public school. And it further appeared in that case that the only special interest which the owner of the property had in keeping the street open was by virtue of the fact that his property abutted thereon. In that decision our statutes, vesting in cities various police powers for the preservation of the life, health, and safety of the citizens, were referred to, but it was held that the act of the city in closing the street did not come within the purview of any of those statutes.

Upon the trial of the present suit, the defendants sought to show that the reaspn why the ordinance giving them permission to close the street was passed was because of the fact that it was a public nuisance, but the ordinance does not, of itself, show that such was its purpose. It seems that the petition of the property owners in the block to have the alley closed was in writing, but the same does not appear in the statement of facts, nor does it otherwise appear that it contained allegations that the alley was a public nuisance. The testimony introduced by the defendant to show that the alley was a nuisance consisted of statements of different witnesses, to the effect that the water from rains would accumulate in the alley and would not drain off; that the same was used as a pass-way for negroes, express, delivery, and garbage wagons, to the annoyance of defendants who owned lots 34 and 35, and perhaps some other persons residing in that vicinity; that the back gates of the owner of lot 24 would sometimes be left open, thereby exposing his back premises to the view of people who lived opposite thereto, and that the alley was a kind of an eyesore generally to the people who lived in that portion of the town, because it had grass growing in it and did not look well. It further appears, however, from the same witnesses that the accumulation and standing of water in the alley was due principally to the fact that the owners of lots 34 and 35 had filled in their lots to a higher level than the alley.

By articles 844 and 845, Vernon’s Say les’ Texas Civil Statutes, the city was given authority to pass ordinances declaring what shall constitute a nuisance, and power to abate the same. But there was no proof of any ordinance declaring that such a condition and use of the alley as that in controversy would render it a nuisance. Nor did the evidence offered by defendants show that the alley was a nuisance per se; nor that the city commissioners found it to be such when they passed the ordinance, and passed it to abate the nuisance. It is therefore quite clear that the closing of the alley cannot be justified upon the theory that it was a nuisance, G., C. & S. F. Ry. Co. v. Belton, 122 S. W. 413. After accepting the alley as a public alley, the city had no authority to close it, except as the power so to do was conferred by statute or by its special charter. 1 Elliott on Roads and Streets, § 30; 2 Id. § 1177; 13 R. C. L. § 60.

And if the ordinance giving defendants permission to close it was based upon the fact that it was a nuisance, as well as by reason of the fact that the owners of property in the block had filed an application therefor, that showing should appear in the record. McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027; Vogt v. Bexar County, 5 Tex. Civ. App. 272, 23 S. W. 1044; Moseley v. Bradford, 190 S. W. 824, cause No. 8458, by this court, not yet officially reported.

Furthermore, by express provision of the statute and the charter, the city had the authority to improve the alley by so filling it as to prevent water from standing thereon, and it was the duty of the city so to do if the health of the public demanded it, and a neglect of that duty would not furnish a lawful excuse for depriving plaintiff Bowers of the special interest in the street acquired by his purchase of lots 25 and 26, without compensating him therefor. As was said in Dwyer y. Hosea, 1 Posey Unrep. Cas. 596:

“The charter of the city conferred upon them the power, and it became their duty, to preserve the health and peace of the city, but it did not confer upon them the power, by suffering, in violation of this duty, the alleys to become a nuisance, to declare them so, and then sell them. This would be a cheap mode of acquiring property.”

In that case the special interest of the party complaining of the action of the city consisted in the fact that his property abutted on the alley.

No doubt is entertained by us that if the alley was a. menace to public health or safety of the citizens, the city would have a right to close it, or give permission to have it closed, notwithstanding any special property right of plaintiffs to have the same kept open, thus leaving to plaintiffs as their only remedy for relief a suit for damages for the injuries so sustained. But in the absence of a showing for such necessity, the city would have no right so to do^ and an injunction would lie in favor of a property owner having a special property interest in keeping the street open to restrain it from so doing. In Kalteyer v. Sullivan, 18 Tex. Civ. App. 488, 46 S. W. 288, in which a writ of error was denied, it was held that plaintiff, Henrietta Kalteyer, was entitled to an injunction to restrain Sullivan and the city of San Antonio from closing a public alley on which her property abutted. The city had given Sullivan permission to close it, and it was closed by him by virtue of the authority so given. The only special interest which the plaintiff in that suit had in the alley different from that' of the public was by reason of the fact that her property abutted thereon. The alley had been dedicated as a public thoroughfare in 1852, and the dedication had been accepted by the city. It does not appear that the plaintiff in that case had bought her property from the dedicator, or any one in privity to him, with a view to any plat, as plaintiffs did in the present suit. In that case the court said:

“An abutting owner has rights not shared by the public at large, special and peculiar to himself, which arise out of the very relation of his lot to the street in front or alley in the rear of it. These rights are property, and as such are as sacred from legislative invasion as his right to the lot itself. Dill. Mun. Corp. § 656a; Story v. Railroad Co., 90 N. Y. 122 [43 Am. Rep. 146]; Railroad Co. v. Heisel, 38 Mich. 62 [31 Am. Rep. 306]; Adams v. Railroad Co., 39 Minn. 286, 39 N. W. 629 [1 L. R. A. 493, 12 Am. St. Rep. 644], The abutting owner’s right of access to and from the street, subject to legitimate public regulations, is as much his property as hs right to the soil within boundary lines. And when he is deprived of such right of access, or any other easement connected with the use and enjoyment of his property, other than by the exercise of legitimate public regulation, he is deprived of his property. 2 Dill. Mun. Corp. § 487b. When it is asserted that the Legislature has plenary power over municipal streets, it must be understood that it has power over them as streets, for it cannot be justly affirmed that it may deprive them of the character of streets, to the special injury of abutters, without yielding them fair compensation for the loss actually sustained. Elliott, Roads and Streets, 19. The city council of San Antonio can have no more power over the streets of the city than is granted by the Legislature, nor can the Legislature grant such power as would, in its exercise by the council, damage the property of an abutting owner, without providing adequate compensation for such damages. The power vested in the Legislature over public highways, which it may delegate to towns and cities over streets within their limits, is for the benefit of the public, and should, by municipalities, be always exercised in furtherance of the purpose for which it is conferred. When the representatives of the corporation upon whom this power is conferred close a highway against the use and to the detriment of the public, and turn it over to a private individual for his private use, they pervert the law, and violate the trust which it is their duty to faithfully execute. * ⅜ * ‘The usual power to regulate and control streets has ever been held not to authorize the municipal authorities to allow them to be encroached upon by the adjoining owner by erections made for his exclusive use and advantage.’ 2 Dill. Mun. Oorp. § 660. And it is well settled that equity will grant relief to a party entitled to a right of way over a street, and protect him in the enjoyment thereof, by restraining the erection of obstructions thereon. Id. § 661. The owner of land abutting upon a street or alley, one end of which is obstructed so that he cannot have egress from his property to other streets in that direction, suffers an injury peculiar to himself by reason of the public nuisance (Bannon v. Murphy [Ky.] 38 S. W. 890), and is entitled to such relief.”

In addition to the right of plaintiff Bowers to have the alloy kept open acquired by the purchase of his lots with the view to the plat which had been dedicated by J. A. Lee, the evidence showed without controversy that it was of special advantage to Bowers in that it furnished him a more convenient access to the rear of his lots; the proof showing that the 16-foot alley running north and south in the rear of his lots was not of sufficient width to allow the ingress and egress by certain vehicles owned by him without moving his rear fence and other improvements from the location where they were originally placed by the owners of the lot, relying upon the assumption that the alley in controversy would always be kept open as it had been platted and dedicated. The evidence further shows that through the alley was much nearer Lake street, which was a paved street, than plaintiff otherwise would be required to travel in order to reach that street. Under article 854 of the statute, the city, as the trustee for the public at large, would have the power, if it saw fit so to do, to close the alley for the special benefit of the owners of property in that block, and no one would have a cause of action therefor, unless he showed some special interest in the alley additional to that which was enjoyed by the public generally. One who had a property interest in keeping the street open ae-quired by a purchase with reference to a plat, as plaintiff Bowers in the present suit acquired his lot, would have such special interest.

The constitutional denial of any power in the Legislature to authorize the taking of one’s property, even for a public benefit, without compensating him therefor applies with special force when the taking is for the sole purpose of donating it to a few individuals. In no event could the city deprive the owner of such a special interest of the value thereof without rendering itself liable in damages therefor, for so to do would be to deprive such owner of his property without due process of law, and, as stated above, in the absence of some special necessity, such as for the preservation of life or health of citizens, such owner would not be limited to a suit for damages sustained by such closing, but would be entitled to equitable relief by injunction to restrain such acts on the part of the city. Vernon’s Sayles’ Texas Civil Statutes, art. 4643; Kalteyer v. Sullivan, supra; Stevens v. City of Dublin, supra.

Defendants filed a motion in the trial court to abate the suit predicated upon allegations that J. M. Chambers, who owned property situated, with reference to the alley in controversy, similarly to plaintiffs’ property, had instituted suit for the same relief against the same defendants in the Sixty-seventh district court, another and different court; that the issues in the two suits were substantially the same, and should be determined in one and the same court at the same time, in order to avoid a multiplicity of suits and unnecessary vexation to defendants. Defendants now present a cross-assignment of error for failure of the trial judge to sustain that motion. The record contains no order of the judge upon said motion, and no showing that any ruling by him thereon was ever invoked. Hence the assignment must be overruled, without reference to the merits of the motion, if any there be.

Without discussing other questions presented in appellants’ brief, which are incidental to the issues discussed above, we are of opinion that the court erred in the conclusion reached that plaintiffs were not entitled to the relief prayed for; and hence the judgment is reversed, and the cause remanded for further proceedings in accordance with the conclusions above noted.

Reversed and remanded.
      ®=3For other oases see same tonic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    MECOM v. VINTON.
    (No. 139.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1916.)
    1. Animals <©=>27 — Bailment—Liability — Res Ipsa Loquitur.
    While ordinarily, in an action by the bailor against the bailee for injury to a horse bailed, the bailor should set out the specific acts of negligence relied upon, yet, where the bailee has sole _ custody, the mere fact of injury imputes negligence, and the bailee has the burden of showing that he was not negligent.
    [Ed. Note. — Eor other cases, see Animals, Cent. Dig. §§ 70-78; Dec. Dig. <S=>27.]
    2. Animals <©=>27 — Bailment—Damages.
    The bailor of horses for a four-months’ term, on their return in an injured condition, within three months, can recover of the bailee a feed bill for the horses, and after their return to the bailor, and also the amount of veterinary’s bill for services, and compensation for time lost in treatment of the horses.
    [Ed. Note. — Eor other cases, see Animals, Cent. Dig. §§ 70-78; Dec. Dig. <S=>27.)
    3. Trial <⅜=>255(10) — Injury to Thing Bailed — A ctions — Instructions.
    In the absence of objection to the general charge or request for special charge on the subject, an instruction is not erroneous, to the effect that ordinarily negligence is never presumed, and the burden of proving it is on the plaintiff, but when the property is injured while in the exclusive custody of the bailee, it is his burden to show that he was not negligent.
    [Ed. Note. — Eor other cases, see Trial, Cent Dig. § 637; Dec. Dig. <©=>255(10).]
    4. Husband and Wife <©=>270(2, 8) — Actions against Husband — Pendency of Divorce Proceedings — Effect.
    Where a defendant and his wife were permanently separated and divorce suit was pending, he, nevertheless, was liable to be sued alone so far as community property is concerned, and therefore was not entitled to introduce evidence of the pendency of the divorce proceedings.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 969, 970, 974, 981; Dec. Dig. <§=>270(2, 8).]
    Appeal from County Court, Diberty County; C. N. Smith, Judge.
    Suit by W. A. Vinton against Harvey Me-com. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Marshall & Harrison, of Liberty, for appellant. C. H. Cain and C. R. Wilson, both of Liberty, for appellee.
   BROOKE, J.

This suit was instituted by defendant in error, Vinton, on September 17, 1914, in the county court of Liberty county, against the plaintiff in error. It was tried on the 19th day of July, 1915, on plaintiff’s first amended original petition, defendant’s first amended original answer, and plaintiff’s supplemental petition, and resulted in a verdict in favor of the plaintiff in the sum of $75. The cause of action was to recover damages for injury inflicted upon two horses, which were bailed to plaintiff in error, and which were injured while in the exclusive possession of said plaintiff in error. The cause of action is based upon the ground that the horses were in good condition when delivered into the hands of plaintiff in error, and were returned in an injured or damaged state when delivered into the hands of the plaintiff. Vinton alleged that he hired two horses, a gray and sorrel, to plaintiff in error on April 24, 1914, for an agreed rental of $15 per month, said horses to be used for farm work only, and to be worked for at least four months; that thereafter, about the 28th day of July, said horses were returned to the defendant in error, the gray horse being crippled in the left front foot, and the sorrel being crippled in the left front foot and left hind foot. Said horses were alleged to be worth $250 when plaintiff took charge of same, and when defendant in error received same back the gray was worth $150 and the sorrel horse alleged to he practically worthless. Defendant in error asked judgment for $200, and also judgment for $5 damages to harness, $25 spent by defendant in error in doctoring said horses, $10 for doctor’s hill, $11 feed bill, $1.50 for labor, and $7 for medicine bill. Defendant’s answers consisted of general demurrer and five special demurrers, general denial, and various special pleas. The demurrers were overruled, and judgment was had in favor of plaintiff in the lower court in the sum of $75.- The plaintiff in error’s motion for new trial being overruled, the cause is now before this court on writ of error.

Plaintiff in error complains that the petition of plaintiff in the lower court did not set 'out how and in what manner the defendant was guilty of negligence, and the proposition is that plaintiff’s petition in the lower court was insufficient against the special exception, asking that the plaintiff set forth and describe the negligence or unusual treatment said horses received by reason of which said horses were injured, and because this was a bailment for hire, and contemplated as matter of law that defendant would work such horses, and use them such as an ordinarily prudent person would do under the same or similar circumstances for the purposes for which they were hired, that negligence must be pleaded and proven, and that the pleader must state the facts upon which he relies to support- his cause. Ordinarily this is true. However, in the case of Hislop v. Ordner, 28 Tex. Civ. App. 540, 67 S. W. 337, the court, Judge Neill handing down the opinion, uses the following language:

“The evidence, briefly stated, is as follows; In October, 1898, the appellee delivered at Ganado his horse and buggy to appellant, to be driven by him, without compensation, and solely for the former’s benefit, to Yoakum, Tex., and there to be delivered to him. On or about the 10th day of the month the appellant started with the horse and buggy from Ganado, the animal then being apparently sound and well, for the purpose of performing his agreement with appellee to drive to Yoakum, and there deliver the animal and vehicle to him. Night overtook appellant on his journey, and he turned into a pasture, unharnessed the horse, turned him loose with a stake rope about his neck, and he commenced to graze; and appellant lay down in the buggy and fell asleep. During the night he was awakened by the groaning and struggling of the animal, and went to him, kicked him, and made him get up. The horse appeared sick, as if he had colic, bit himself in the flanks, and shortly afterwards lay down and died. The horse had been driven at an ordinary gait from 7 o’clock in the morning, except an hour and a half' taken for noon, until sundown. But it cannot be determined from the record before us the distance traveled. The statement of the evidence in regard to the journey, and what occurred during it, is made from the testimony and admission of the appellant himself; such being the only evidence on the subject. Ordinarily negligence is never to be presumed, but must be proven like any other substantive fact, and the burden of proof is upon the plaintiff. But when the property is lost or injured while in the exclusive custody of the bailee, his servant or agent, it is incumbent upon the bailee to prove that the loss or injury was not occasioned by the negligence of himself, or his servants or agents. 3 Am. & Eng. Enc. of Law (2d Ed.) page 750, and cases cited; Pusey v. Webb [2 Pen. (Del.) 490], 47 Atl. 701. -Ke reason of the rule is apparent. The bailee has the sole possession and custody of the chattel bailed. He cannot return the article to the bailor in a damaged condition, or not return it at all, and by his silence defeat a recovery for the damage because of the bailor’s inability to prove how the damage or loss happened. Although the burden of proof may rest eventually upon the plaintiff to establish his cause of action, until some reason is given for the injury to or loss of the property, the bailee should properly be held answerable therefor. Rutherford v. Krause [55 App. Div. 210], 66 N. Y. Supp. 781.”

Also, in the case of Freeman v. Foreman, 141 Mo. App. 359, 125 S. W. 526, the court used the following language:

“Attention was first called to this by Judge Thompson in the case of Arnot v. Branconier, 14 Mo. App. 431, in which he calls attention to the decision of the Supreme Court in McCarty v. Wolfe, 40 Mo. 520, in which it is held in a case of bailment that the plaintiff, having alleged negligence in, his statement, assumed the burden of proving it, and that this burden is not discharged by proof of the bailment and failure to return the property. In the later case of Wiser v. Chesley, 53 Mo. 547, the Supreme Court held that a prima fade case was made by proof of the bailment and loss of the property. In the latter case it does not appear in the statement of the case what the pleadings alleged, but from the appellant’s brief in that case¡ it appears that the case was tried on the negligence theory. Judge Thompson concluded that the case of Wiser v. Chesley was in conflict with the case of McCarty v. Wolfe, and as it was the later case, and, as he thought, gave a correct exposition of the law upon that question, he followed that case, and held that, when negligence was charged in general terms, a prima facie case was made by proof of the bailment and loss or injury of the property. This has been the uniform holding by the Courts of Appeals in this class of cases since. Clark v. Shrimski, 77 Mo. App. 166; Berger v. Storage & Commission Company, 136 Mo. App. loc. cit. 40, 116 S. W. 444. We think the apparent conflict in the cases arises from a failure to distinguish between causes of action based squarely upon a contract of bailment and those founded upon negligence. It is familiar law that in bailment cases it is not necessary to plead negligence. All that is necessary is for plaintiff to allege the contract of bailment and his compliance therewith, and a failure of defendant * * * to return the property, or its return in an injured condition. In cases grounded upon negligence, it is also familiar law that the burden of proving negligence is upon him who alleges it, and when a bailor grounds his action in negligence, he waives his rights under the usual mode of procedure ⅛ bailment cases, and subjects himself to the rules applicable in negligence cases. There is one rule, however, wMch, in a proper case for its application, practically places the plaintiff, who alleges negligence in general terms in a bailment case, upon the same footing, as far as proof is concerned, as he who brings an ordinary action upon a bailment contract without any allegation of negligence; and that is that in all negligence cases, where the chárge of negligence is a general one, and the plaintiff can show that the loss or injury occurred under such circumstances that it may be reasonably inferred, _ from the fact that injury did occur, that if ordinary care had been used by the party charged, the injury would not have resulted, he thereby makes a prima facie case, and casts upon the defendant the burden of showing that he exercised that degree of care which under the law it was his duty to exercise in the particular case. This doctrine known in legal parlance as ‘res ipsa loquitur,’ is now a familiar rule of practice in the trial of negligence cases. The trial court in holding that plaintiff made a prima facie case by proof of the bailment and injury to the animal while she was in the care of defendants must have done so upon the theory that this was an appropriate case for the application of the rule above cited. In this we think he was right.
“It is not usual for a horse to be injured while standing in a bam, and, when one is injured while in that situation, it is but fair to assume that the injury resulted from some want of care upon the part of those in charge of the barn. The horse is committed to the care of defendants, and while in their care is injured. The defendants are in a position to know what was done in the way of caring for the horse, and the plaintiff is not. To require the plaintiff under such circumstances to prove the specific acts of negligence which caused the injury, or to prove in what particular the defendant failed to exercise ordinary care, when he was not present and had no opportunity to observe the conduct of the defendants, or their servants, would be to place upon him an impossible burden, and require him to assume the responsibility of proving facts that were exclusively within the knowledge of the defendants, and of which he had, and in the nature of things could have, no information, and would be equivalent to denying him any relief at all. The allegation of negligence in this ease is made in general terms. No specific act of commission or omission is alleged. Price v. Metropolitan Street Railway Co., 220 Mo. 435, 119 S. W. 932 [132 Am. St. Rep. 588].
“Defendants contend, however, that this is not a proper case for the application of the rule of res ipsa loquitur, because they contended at the trial that plaintiff’s treatment of the horse after it had received an injury in the bam augmented it and made permanent what at first was only a slight injury. We are unable to see how any position taken by defendants at the trial or any evidence offered by them could deprive plaintiff of any of his rights, or take from him the benefit of any presumption in his favor. True, the presumption of negligence which arises from the fact of injury while the property was in the exclusive control of defendants would not continue and apply to any injury that might be occasioned by the unskillful treatment of the horse by plaintiff after the initial injury was inflicted. The question as to what effect plaintiff’s treatment of the animal after the injury may have had upon it was one of fact, and, as no declarations of law were asked as to that question, we must assume that the court decided it correctly. If plaintiff’s treatment of the animal did increase the effect of the injury, this would only reduce the damages, and would not be a complete defense.
“The fact that plaintiff offered some testimony tending to show specific acts of negligence on the part of defendants should not deprive him of the benefit of a presumption that already obtained in his favor. Such testimony should be regarded as cumulative only, and should have no effect upon the presumption of negligence arising from the fact of the injury itself, unless such testimony should, in some way, contradict the presumption. Especially is this true where, as in this case, such evidence does not clearly show how the injury was inflicted. Price v. Metropolitan Street Railway Co., supra.
“This being, in our judgment, an appropriate case for the application of the doctrine of res ipsa loquitur, our conclusion is that this case was tried upon the correct theory, and the trier of the fact, which, in this case, was the court, had the right, upon proof of the bailment and injury while the prooerty was in the exclusive charge of the defendants, to infer negligence therefrom. The court found the issues in plaintiff’s favor, and, as there is substantial evidence to support them, we shall not disturb his findings.”

This, in our judgment, effectually disposes of the contention of the plaintiff in error, and the assignment is overruled.

Plaintiff in error further assigns error, as follows: (a) The trial court erred in overruling plaintiff in error’s exception No. 2 to the first amended original petition, because the $11.70 set up in the petition for feed for the horses, after defendant in error had taken said horses from plaintiff in error, constituted double damage, and is too remote.

(b) The trial court erred in overruling plaintiff in error’s special exception No. 5, to plaintiff’s first amended original petition, because the doctor bill that plaintiff’s petition undertakes to charge defendant with is too remote and constitutes double damages.

(c) The trial court erred in overruling defendant’s special exception to the court’s general charge, wherein the jury was instructed that if they should find for the plaintiff such amount as the evidence showed would reasonably compensate plaintiff for time lost in treatment of the horses, because the same was too remote and constituted double damages.

(d) The trial court erred in authorizing the jury, in his general charge, to find for plaintiff the amount of the feed bill after the horses were delivered to the defendant in error, because the amount of said feed bill is too remote, and constitutes double damages.

Upon these and like contentions, it has been held that reasonable expense incurred in taking care of and curing an animal injured by a railway company can be recovered. I. & G. N. Ry. Co. v. Cocke, 64 Tex. 151. In that case, among other things, the Supreme Court says:

“If, in consequence of the wrong of the appellant, the cow of the appellee was so injured as to render it necessary to incur expense in taking care of and curing her, then the appellant was liable for such reasonable expenses as were necessarily incurred in this respect, and the court correctly so charged” (citing Watson v. Proprietors Lisbon Bridge, 14 Me. 205 [31 Am. Dec. 49]; .Gillett v. Western Ry. Corp., 8 Allen [Mass.] 563; 2 Sedgwick on Measure of Damages, 315, note A.

It has also been held that where an animal is so injured by the actionable negligence of the railway company that its usefulness is not only impaired, but destroyed, the measure of damage is its.value, reasonable compensation for attention and expense in a prudent effort to effect a cure. Railway Co. v. Keith, 74 Tex. 287, 11 S. W. 1117. The Supreme Court, in passing upon this case, used the following language:

“The general rule undoubtedly is that, where there is a total loss of personal property resulting from the negligence of defendant, the measure of damages is the value of the property at the time of the injury, and interest. This rule is not inflexible. Where an animal is so injured that its usefulness is not only impaired, but destroyed, the measure of damages is its value, reasonable compensation for attention, and expenses in prudent effort to effect a cure. It is said in Shearman & Redfield on Negligence: ‘The law would be inhuman if it should proscribe a different rule, even where the animal eventually dies, since it would then offer an inducement to the owner to neglect its sufferings.’ Shear. & R. Neg. § 603, and note 2. If the plaintiff in good faith attempted to cure his horses after they were injured, and for that purpose fed and attended to them, and they became from their injuries useless, he should have, as damages, reasonable compensation for his. attention to them, and expenses incurred, besides their value; provided, of course, he is entitled to recover at all.”

We do not see why, in a case of bailment, the same rule would not apply as in the case of negligent injury of animals by a railway company. Therefore we find no merit in these assignments, and they are overruled.

The sixth assignment of plaintiff in error is as follows:

“The trial court erred in giving special charge No. 1, requested by defendant in error, which special charge No. 1 reads as follows: ‘You are hereby charged that ordinarily negligence is never to be presumed, but must be proven like any other substantive fact, and the burden of proof is upon the plaintiff. But when the property is injured while in the exclusive custody of the bailee, his servant or agent,'it is incumbent upon the bailee to prove that the injury was not occasioned by the negligence of himself, or his servants or agents.’ ”

There was no objection to the general charge in this respect, nor was there any request for special charge covering this point. It seems that the case was tried on the theory that the horses were in a good sound condition when they were delivered, and there was no issue seriously raised as to whether or not the horses were crippled at the time it was claimed. Plaintiff in error should have requested a special charge specifically submitting the issue. The same might be said with reference to the seventh assignment of error. They are each overruled.

By the' eighth assignment of error, it is charged that the court erred in refusing to permit the plaintiff, Yinton, to testify that he and his wife were permanently separated, and that a suit for divorce was pending, because said testimony would have shown that since the filing of the suit the marriage relation between plaintiff and his wife, so far as community property is concerned, has been dissolved, etc.

It seems that at the time of the trial of this case suit for divorce was only pending. The plaintiff in error, Vinton, was still a married man, and head of the family, and was entitled to sue and be sued alone, in so far as the community property is concerned, and as such, it was not necessary to join his wife as a party plaintiff and part owner of the property.

We have made a careful examination of the record, and, finding no error, we believe that the same should be in all things affirmed; and it is so ordered.

Affirmed.
      <S=>For other oases see same topic and KEY-NUMBER in all Kes-Numbered Digests and Indexes


text:
    ABSHIER et al. v. AIKEN et al.
    (No. 183.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 8, 1916.)
    Y. Elections _<@=5295(1) — Contesi>—Evidence.
    Evidence in election contest held to show that a voter was deterred from voting by talk as to his having trouble if he voted and an opinion of the county attorney as to voting rights.
    [Ed. Note. — Por other cases, see Elections, Cent. Dig. § 297; Dec. Dig. <@=>295(1).]
    2. Elections <@=>238 — Restraint oe Voter from Voting — Eeeect.
    Where a voter was restrained from voting by threatening talk and an adverse opinion on his voting rights by the county attorney, and his vote would have tied the result as between two candidates, the vote as between these candidates should be determined a tie.
    [Ed. Note. — Por other cases, see Elections, Cent. Dig. §§ 216, 217; Dec. Dig. <@=>238.]
    3. Elections <@=5295(1) — Contest—Evidence.
    Evidence in election contest held to show that a certain voter was neither influenced by intimidation nor an adverse opinion by the county attorney oil his voting rights.
    [Ed. Note. — Por other cases, see Elections, Cent. Dig. § 297; Dec. Dig. <@=5295(1).]
    4. Elections <@=5295(1) — Residence oe Voter —Evidence.
    Evidence in election contest held not to show conclusively that a voter did not live and pay his poll tax in the county in which he voted.
    [Ed. Note. — Por other eases, see Elections, Cent. Dig. § 297; Dec. Dig. <@=>295(1).]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Election contest by H. C. Abshier and others against Jesse Aiken and others. Judgment for contestees, and contestants appeal.
    Reformed and affirmed.
    Stevens & Stevens, of Houston, for appellants. C. H. Cain and E. B. Pickett, Jr., both of Liberty, for appellees.
   BROOKE, J.

This suit was instituted by H. C. Abshier, Nicholas Schmitz, and Dr. H. C. Smith to contest an election for drainage commissioners in and for drainage district No. 2, Liberty county, held upon the 25th day of March, A. D. 1916. The contestants alleged in their first amended original notice of contest and in their trial amendment: That said drainage district had been duly and legally constituted, and that, according to the returns of the election as canvassed by the commissioners’ court, the vote was as follows: J. H. Suttles, 19 votes; Jesse Aiken, 13 votes; Geo. Parker, 13 votes; Nicholas Schmitz, 12 votes; H. 0. Abshier, 12 votes; H. C. Smith, 11 votes. That H. A. Hotchkiss, who voted for each of the eontestees, was not a qualified voter, because he should have paid his poll tax in Montgomery county, and for the further reason that he had not resided in liberty county for six months preceding the election. That Chester Carson and - Eastman and Newt Tucker, who were qualified voting taxpayers in said district, but who owned no real estate therein, were intimidated from voting on account of threats offered by certain persons in the election booth and around said election booth, who threatened to prosecute such parties upon charges of illegal voting for the reason that they did not own real estate within said drainage district, and for the further reason that Mr. C. H. Cain, the county attorney of Liberty county, had issued an opinion upon the law governing the right of suffrage in the matter of the election of drainage commissioners, which opinion held that no electors other than those who owned real estate within such district were qualified and legal voters. It was further alleged that the said Carson, Eastman, and Tucker, had they voted at said election, would have voted for said contestants. The eontestees denied specifically the allegations of the contestants, and by trial amendment alleged that H. C. Smith, one of the contestants, who voted for all of the contestants, was not a qualified voter in said district, for the reason that he resided without said district.

. The court held that the eontestees have been duly elected, and judgment was accordingly entered to that effect. A motion for a new trial was filed by the contestants, which, in addition to errors of law upon the part of the trial court, set up certain newly discovered evidence, which set forth that J. H. Suttles, one of the eontestees, and who voted for the eontestees, was not a qualified voter in said district, in that he should have paid his poll tax in Jefferson county, where he resided on the 1st day of January, A. D. 1915. The motion for a new trial was overruled, and the case has been appealed to this court.

The first assignment of error is as follows:

“The undisputed evidence having shown that Chester Carson, a qualified voter in said drainage district, a short time prior to the election applied to Hon. C. II. Cain, county attorney of Liberty county, for an opinion as to whether or not it is necessary for an elector in said drainage district to vote at said election, which is now being contested, in order to be qualified to vote should be required to own real estate in said district, the said Chester Carson only owning taxable personal property in said district, and it appearing further from the evidence that said Hon. C. H. Cain, county attorney of Liberty county, gave a written opinion to said Chester Carson, wherein he was advised that only those persons being" freeholders in said district were qualified voters at said election, which opinion of said Hon. C. H. Cain is hereto attached and marked Exhibit A, and the evidence having further shown that the said Chester Carson, on account of the opinion of said Hon. C. H. Cain, and on account of certain threats of prosecution by certain parties actively aligned with eontestees in this cause., should he vote in said election, while not being a freeholder taxpayer therein, refrained from voting, and the evidence having further shown that said Chester Carson, had he been permitted to vote, would have voted for H. C. Abshier, J. I-I. Sut-iles, and Geo. Parker, and the court erred in holding that said contestant, H. C. Abshier, had been deprived of a vote, which would have tied the vote of the said H. C. Abshier with the said Jesse Aiken, one of the eontestees, the undisputed evidence having shown that Newt Tucker, a qualified freeholder taxpayer and voter in said drainage district would have voted for the contestants in said election had he been permitted to vote, but that he was deterred from voting by threats of prosecution against himself on account of the fact that he was not a freehold taxpayer in said drainage district, hence the court erred in not setting aside said election, and holding that there would have been a tie vote as to the contestants II. C. Abshier and Nicholas Schmitz.”

The opinion which Mr. C. H. Cain furnished as to the qualification of voters for the election of drainage commissioners is as follows:

“Drainage Commissioner’s Qualifications — How Elected — Qualified Voters, etc.
“Article 2585, Vernon’s Sayles’ Texas Civil Statutes 1914, provides: ‘After the establishment of any drainage district as herein provided, the commissioners’ court shall appoint three drainage commissioners, all of whom shall be residents of the proposed drainage district, who shall be freehold taxpayers and legal voters of the county, whose duty shall be as hereinafter provided, and who shall each receive for their services a sum of not more than two dollars and fifty cents per day for the time actually engaged in the work of said district: Provided, the compensation (if any) shall have been definitely fixed in the order of the court; and before any amount shall be paid said commissioners, or either of them, they shall make a detailed report to the commissioners’ court of the time actually consumed in the work for said district, and of the work done, and such report shall be audited and approved by the commissioners’ court. Said drainage commissioners shall hold office for the term of two years and until their successor's have qualified, unless sooner removed by a majority vote of the county commissioners for malfeasance * * * ⅛ office. Upon expiration of the term of office of said drainage commissioners or in case of the resignation of any such commissioners the commissioners’ court shall appoint their successors by a majority vote: Provided, that after the election establishing a drainage district, if a majority of the real property taxpayers of such district residing in such county, present a poútion to the county commissioners’ court, praying for an election in said district for the purpose of electing three drainage commissioners therefor, the county commissioners’ court shall immediately order an election to be held in said district for said purpose at the earliest legal time, and an election shall be held and the returns thereof made as herein-before provided for other elections, and the same qualifications hereinbefore provided for voting at other elections shall apply in said election. The commissioners’ court shall canvass said returns and declare the results at their next regular or special session, and the three persons re-, coiving the highest number of votes shall be declared elected. In the event the third highest vote be tied, the commissioners’ court shall elect the third drainage commissioner from among those receiving the third highest vote. Such commissioners so elected when duly qualified as required by this Act, shall be the legal and rightful drainage commissioners for such district within the full meaning, intent and purpose of this law. All drainage district commissioners elected as herein provided shall hold their offices until the next regular election for state and county officers, and shall then and thereafter be elected every two years at such general election.’
“It is apparent and conclusive, therefore, that to be legally qualified to hold the office as drainage commissioner, one must be a qualified voter in said district; must be a freehold taxpayer, meaning thereby that he must be a ‘resident taxpayer.’ Now it is not clear (though it seems to be intended that all voters in said drainage district should be real property taxpayers) as to whether or not one should be a real property taxpayer to vote for such commissioners, but I take it, and so understand the law to be, that a resident taxpayer in said district is qualified to vote for such commissioners if he is otherwise qualified. Article 2581 so provides: ‘Every person who offers to vote in any election held under the provisions of this act, shall first take the following oath before the presiding judge of the polling place wherein he offers to vote, and the presiding judge is hereby authorized to administer same: “I do solemnly swear (or affirm) that I am a qualified voter of (Liberty) county, and that I am a resident property taxpayer of the proposed drainage district voted on at this election, and I have not voted before at this election.” ’
“It follows, therefore, that one can vote on this question if he is a resident property taxpayer. It seems and is clear that, one should live in the district strictly, and be a freehold taxpayer and a qualified voter in said district; in other words, he must come strictly within the bounds of such district strictly before he can become a commissioner , of said district.
“Respectfully submitted.
“C. H. Cain, County Attorney.”

There is no question but that the opinion of the county attorney was more or less confusing, in that, after saying that “it seems to be intended that all voters in said drainage district should be real property taxpayers,” he goes on to say that “he takes it and understands the law to be that a resident taxpayer in said district is qualified to vote for such commissioner if he is otherwise qualified,” and the opinion is possibly not as clear as it might be. The testimony shows that the presiding officer of the election, as was his duty, read the oath to each person offering to vote, but that he did not read the opinion of the county attorney to each person who offered to vote. It was, however, discussed on .the outside of the polls, and there seemed to be in the minds of some persons some doubt as to what the county attorney really construed the law to be on the subject of the qualification of a voter. However, we will attempt to ascertain from the testimony of the parties alleged to have been intimidated what moved or prevented them from voting.

Chester Carson testified:

“I live at Raywood, and have lived there for about 12 years, and live in this drainage district; have personal property there, horses and cows and things like that, and household goods, and I pay taxes on them; did pay taxes on them last year and this year. On the 25th of March of this year I was helping to hold the other election there at Raywood. There was a different polling place for that from the drainage commissioners’ election. I left the election place that I was helping at and went down to the other one, and they told me that I didn’t have no right to vote; that I didn’t own any land. They were all over the street talking to different people, and I didn’t know whether I had a right to vote, or not, and I went down there to vote, and after I got there they told me I had better not vote; some of them said I would be perjuring myself. I don’t just remember who it was said that, but think Mr. Cardiff said it for one. He was on the outside of the election booth, right near it. There was a whole bunch of them standing right around the door. He didn’t tell me that right at the election booth. He was talking to a bunch right close to where the hog law election was, and said that a man didn’t have land wasn’t entitled to a vote, and he believed that if they did vote they would perjure themselves. That was to vote for drainage commissioners. Mr. Suttles, who is one of the candidates, is a son-in-law of Mr. Cardiff’s, and Mr. Cardiff was supporting Mr. Suttles for the office of drainage commissioner. I would have voted if they had not said that; if I had not been afraid to vote, I would have voted. I received an opinion from Mr. Cain, but I didn’t understand it thoroughly. Had I voted, I would have voted for Mr. H. C. Abshier. I would have voted for Mr. Suttles also, and Mr. Cardiff and Mr. Suttles knew it; I told them both I would vote for Mr. Suttles. I would have voted for Mr. Parker also. They are two of the men that have been elected as drainage commissioner, and my third man would have been Abshier. I got the opinion from the county attorney, but I didn’t understand whether I was entitled to vote by not owning land or not, and was a little bit afraid to take the chance of voting; didn’t want to got into trouble. We had had several discussions about it before the day of the election even, that a man had to own land to be entitled to vote. Mr. Cardiff is the man that I heard say that on the day of the election. He was talking up there near the hog law election booth where I was one of the officers, and from that I wasn’t thoroughly satisfied that I had -a right to vote. I went down to the other election booth to vote about 5 o’clock. I went in, and just at that moment Mr. Conklin, who was the presiding judge, stepped out, and I stepped out, too. I suppose if he had been in there I would have probably voted at that time, but after I got to thinking about it again I changed and went back up to the hog law election. Nobody on the inside of the booth threatened me about my right to vote, and no one challenged my right to vote. When I went in to vote, Mr. Conklin was absent, and I didn’t vote because I wanted to see the oath. I saw the oath. No one inside the booth told me that there was a probability of having to pay a penalty for having taken that oath, but one party outside asked me if I was going to vote, and I told him I was undecided, and he told me he didn’t believe he would because he didn’t want to see me get into any trouble. That man’s name was Jesse Aiken. He said he didn’t want to see me get into any trouble. That was in about 15 feet of the polling place. I had already been in the polling place and come out when he told me that, but I hadn’t give up my mind of voting. I never did go back and consult the judge of the election. I had gotten the county attorney’s opinion, but couldn’t satisfy myself from that that I had a right to vote. When I went into the place to vote nobody challenged my right to vote and no one interposed any objection to my voting. And after I walked out of there I never returned. That was the only time I went to the polling place while this election was being held. Tes, sir; I can read and write. Am 40 years old. I am over 21 years old and paid my poll tax in liberty county, Tex. Jesse Aiken is the man that advised me not to vote. He told me that he didn’t want to see me get into any trouble, and was afraid if I voted that I would get into trouble about it.”

Newton Tucker testified as follows:

“I live at Raywood, and have lived there this last time about four years. I live in the drainage district, and also live in the hog law district. The hog law district took in part of the territory that the drainage district did, but not all of it. We had two elections on the same day, and I came up from below where I was working, came up in the evening to vote, and went to the election that was about the hog law and voted, and went on over where they were holding the other election and lounged around there, and never tried to vote, for the reason that I understood I couldn’t vote for the simple reason that I had no land in the drainage district. I couldn’t tell you who told me that, but I heard it there in the street; it was talked that a man that didn’t have no land in the district had no right to vote. It was said that a man that voted under those circumstances would be guilty of perjury and would be prosecuted to the full extent of the law. I didn’t have any land in the drainage district; it missed the land that I own. I had household goods and such as that, but had no stock no more than a dog, and I wasn’t paying taxes on him. I paid taxes on my household goods. I owned some land that was in the hog law district, and I voted in that election. The talk I heard there kept me from trying to vote in the commissioners’ election because I knew if I tried to vote I would be challenged. The way I understood it I had no right to vote unless I owned real estate in the district, and of course there was no use to go and make application for a ballot. If I had voted my preference would have been for Dr. Smith, Cameron Abshier, and Mr. Schmitz. Those are the ones I would have voted for. I didn’t even go to the polls, because I had heard this talk, and didn’t want to make application for a ballot. I heard that talk even before I came to Raywood that evening. I never did come to town and ask the county attorney or the county judge’s opinion about it, and I never read the county attorney’s opinion that they had out there; never went in the election booth and asked the presiding judge what the oath was, and never read the oath, and I never inquired of any friends as to what the oath was. I just heard it discussed there that to vote I would have to own some property in the district, and that was my. understanding. Nobody intimidated or threatened me, and I never give them a chance to challenge my vote. I decided that if that was the case I had no vote coming and didn’t try to vote. I don’t remember who I heard make the statement that I had to own land to vote, but it was kinder common talk. I never had any horses or cows or anything like that, just had household furniture, and it is worth about 15 cents. J paid my poll tax. I don’t know whether any of them talked about the county attorney having written an opinion to the effect that you had to own land before you could vote; don’t know whether they talked about that before the election or not, because I was away from home all the time only Saturday night and a part of Sunday, and I didn’t get onto what may have been talked. I didn’t hear anything about his opinion at all that I know of before the election.”

Mr. J. O. Aiken, one of the contestees, testified that fie agreed with Chester Carson that the latter was not a qualified voter, and that he stated to Carson he would not lay himself liable for any friend.

Mr. C. W. Cardiff, witness for the eontes-tees, testified that his construction of the county attorney’s opinion was that the elector had to own land in the district before he could vote, and that seemed to be the opinion that everybody placed upon said opinion, and further testified that Chester Carson told the witness that he (Carson) could not vote on account of said opinion of the county attorney.

From the above it is clear to our minds that Mr. Carson was an honest, conscientious citizen, and intended to vote for Mr. Abshier, but was deterred by the talk, among others, of Mr. Aiken, one of the contestees, as to having trouble if he voted, and the general opinion expressed upon the ground by those who came to vote as to what the county attorney really held the law to be, and perhaps from the fact that after reading the county attorney’s opinion he was not able to assure himself from his language that, not owning real estate in the drainage district, he was not rightfully entitled to vote therein. If he had voted for Mr. Abshier, as was evidently his intention, the vote between Abshier and Aiken would have tied.

In the case of Hodge v. Jones, 17 Tex. Civ. App. 511, 43 S. W. 43, Judge Key delivering the opinion, the following language is used:

“The testimony fails to show that any of the officers or managers of the election were connected with, or in any wise responsible for, the riotous conduct at Hearne, and it may be that the case does not fall within the strict meaning of the statute; but, without regard to the statute, we are of the opinion that the action of the court in declaring the election null and void is sustained by the common law on the subject. That law is announced by a text-writer in the following language: ‘If it clearly appear that the fairness, purity, or freedom of an election has been materially interfered with by acts of violence, intimidation, or armed interference, such election should be set aside. Slight disturbances frequently occur, and are often sufficient to alarm a few of the more timid, without materially affecting the result or the freedom of the election. íffie true rule is this: The violence or intimidation should be shown to have been sufficient either to change the result, or that, by reason of it, the true result cannot be ascertained with certainty from the returns. To vacate an election on this ground, if the election were not in fact arrested, it must clearly appear that there was such a display of force as ought to have intimidated men of ordinary firmness.’ ”

In Am. & Eng. Enc. of Daw (2d Ed.) vol. 10, p 776, the following is said:

“It is an old adage of the common law that elections should be free; and anything which prevents the free exercise of the right of suffrage by the qualified electors will be a sufficient ground for setting aside an election in any country or state where the rules of the common law prevail. When persons are prevented by force from casting their ballots, it cannot be said that there has been an election, although there may have been the form of one; and the people should not be bound by such a proceeding.”

On page 777 the following language is used:

“It is not every disturbance or breach of the peace in the election district, or at the polls, on the day of election, that will be considered as sufficient to set aside the election' on the ground of _ violence or intimidation. The violence or menace 'must be of such a character that a man of ordinary firmness would be deterred from attempting to vote, and the time and circumstances of its exercise must have been such as to render it highly probable that the result was rendered uncertain. The precise degree of violence or intimidation required to avoid the election is difficult to determine, as much depends upon the circumstances of each particular case, the habits of society, and the character of the ordinary gatherings of the people. * ⅜ ⅜ jn England it would seem that a less degree of violence will be sufficient to set aside the election, where it is shown that it was instigated by the candidate or his agent rather than by other parties; but, in the absence of connivance on his part, it must be shown that the violence was so great as to prevent a fair and free election-.”

And on page 778 it is said:

“It is not necessary that the persons who are guilty of violence or intimidation should be connected with the candidate; but, if there is such violence that the voters cannot safely deposit their votes, the election should be set aside, regardless of the relation of the persons by whom it was committed.”
“It is not necessary that the intimidation should proceed from a fear of personal injury; but a combination on the part of employers of laboring men to discharge their workmen, or an agreement not to employ persons unless they vote in accordance with their demands, will be sufficient to avoid the election, if the intimidation is so general as to affect the result.”

The Supreme Court of Arkansas, in Patton v. Coates, 41 Ark. 111, has held that intimidation sufficient to render it uncertain what the result of an election would have been, will avoid it, though it may not have been such as would have influenced men of ordinary firmness. - We are constrained to hold. that in the instant election, it being shown that Mr. Carson would have voted for two of the contestees, but also would have voted for one of the contestants, Mr. II. C. Abshier, and that said ballot would have tied the result with Mr. Aiken, his opponent, the said vote between the two said parties should be determined a tie. In so far as Mr. Newt Tucker is concerned, the testimony shows that he had not read or heard of the opinion of the county attorney prior to the election, and did not offer to vote, and, neither being influenced by intimidation or the opinion of the county attorney, the holding of the lower court is correct as to him.

The second assignment of error is as follows:

“That said contestants now move the court to set aside its judgment and grant them a new trial on account of the following newly discovered evidence, to wit: That J. H. Suttles, eon-testee herein, moved to Liberty county to said drainage district about the month of August, 1916; that said Suttles, as disclosed by his testimony as a witness in this cause, had been living in Jefferson county for the year preceding August, 1915; that when the said J. H. Sut-iles became a resident of said district for six months prior to said election, nevertheless the said Suttles, as discovered by his testimony, was a resident of Jefferson county on the 1st day of January, 1915, and therefore was subject to the payment of a poll tax in said Jefferson county for the year 1915, and was so assessed in said Jefferson county for 1915, and the said Suttles did not pay his poll tax in said Jefferson county for the year 1915; that this fact did not come to the knowledge of contestants until the 14th day of June, 1916, after the trial of said cause; that said Suttles voted in said election, as contestants are informed and believe, for said contestees therein; that it was unnecessary for contestants to ascertain as to whether or not the said Suttles had paid his poll tax in the proper county, for the reason that the case, as made by the pleadings -of the contestants and contestees at.the time of the trial and as subsequently developed by the proof, showed beyond a question there was a tie vote between these two contestants and contestees Jesse Aiken and Geo. Parker; that the- contestees in their pleadings set up that H. O. Smith was.not eligible to the office of drainage commissioner because he lived without the district, but did not allege in their pleadings originally or at the time of the trial until after all the evidence was closed, which they did by a trial amendment, that H. O. Smith had voted in said election for the contestants, and that contestants did not expect to have to meet that issue, until said trial amendment was filed after the close of the testimony in the case; that said Suttles was elected as J. S. Suttles, whereas his real initials are J. H. Suttles, and said Suttles paid his poll tax in Liberty county in January, 1916, for the year 1915, which was not the proper place for payment as above alleged; that contestants did not know that said Suttles had been a resident of Jefferson, county for the year 1915, and subject to the payment of a poll tax therein until the said Suttles testified that he removed from Jefferson county in April, 1915.”

Witb reference to Mr. Suttles’ place of residence on January 1, 1915, be testified as follows:

“I live at Raywood, and lived there at the time the election was held, and had been for some time. * * ⅜ I have been living in Ray-wood off and on for the past 13 years. The year before the election, part of the year I was in Jefferson county, and stayed there until along in April or May, about the time school closes. I have lived in Jefferson county as much as a year at a time, but didn’t live there that much last year. I left Jefferson county about the latter part of April, and my wife came to Ray-wood, and then went to Houston on a visit. 'I had a place at Port Arthur during the storm, but my wife wasn’t there during the storm, she was in Houston on a visit.- She visited in La Porte and Strang before she went to Houston. She came to Raywood the Wednesday after the storm, the'18th, the first train out of Houston, and has been there since.”

On bearing of contestants’ motion for new trial, Mr. Suttles, contestee, being sworn as a witness, testified that in tbe election in controversy be voted for contestees, and in connection witb tbe offering of said certificate contestants' placed Mr. Suttles on tbe stand, and be testified that be bad stated during tbe trial of tbis case that be bad lived at Raywood, in Liberty county, off and on for 13 years; that be and bis wife bad kept a part of tbeir furniture there and bad a furnished room, which was kept for them all of tbe time at tbe borne of bis father-in-law. He further testified that on the 1st day of January, 1915, be was living in said town of Raywood witb bis wife. Appellants1 admit that in January, 1916, Suttles paid to Liberty county a poll tax for tbe year 1915.

While tbe testimony is not free from all doubt, we find no error in tbe action of the court in this matter. We are not prepared to say that it was shown conclusively that Suttles did not, as he testified, live in Liberty county, and pay his poll tax in liberty county. This assignment is therefore overruled.

Appellants’ third assignment of error is as follows:

“Because the evidence shows that H. C. Smith was a resident elector of the drainage district who voted at the election for contestees; hence the court erred in holding that he did not reside within said district.”

The court heard all the testimony in this case with reference to the residence of Dr. Smith, and it would serve no useful purpose to set the testimony out in full. The trial court filed no findings of fact, and it seems to be well settled that this court must take as supporting the judgment any facts which may be found in the evidence, and there is testimony, it may be said, to support the court’s finding. Therefore this assignment is overruled.

We have carefully considered the record, and the record reflects the fact clearly that Carson was entitled to vote and would have voted in the election as above set out, but was in doubt as to his rights and feared trouble in the courts, and in the event he had voted would have voted for Mr. Abshier and the two contestees above mentioned, and that therefore the Vote was equally divided and tied between Abshier and Aiken.

Therefore, in this state of the record, the judgment of this court is that the judgment of the lower court be affirmed with reference to holding that Suttles and Parker were elected, but judgment will be here rendered that the vote as to Abshier and Aiken is a tie, and that matter will be herewith remanded, in order that the commissioners’ court of Liberty county, as provided by law, shall decide who shall be drainage commissioner as between these two.

As so reformed, the judgment is in all things affirmed.
      i5=>For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes