text:
    SAN ANTONIO & A. P. RY. CO. v. MOSEL et al.
    (No. 5590.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 15, 1915.)
    1. Railroads &wkey;>60 — Depots—Location.
    Rev. St. 1911, art. 6550, relating to the surveys of railroad companies and the location of depot grounds, which declares that a depot, having been designated, shall not be changed, applies only to the construction of new railroads, and does not, where public interest necessitates, preclude the straightening of a railroad or the changing of a passenger depot in a town when for the benefit of the public.
    [Ed. Note. — Eor other cases, see Railroads, Cent. Dig. §§ 134, 136; Dec. Dig. t&wkey;>60.]
    2. Railroads <&wkey;60 — Depots — Changes — Burden oe Proof.
    Where a railroad seeks to change its established depot on the ground that it is for public benefit, it has the burden of proving such benefit in an action to restrain such removal.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 134, 136; Dee. Dig. <&wkey;60.]
    3. Evidence &wkey;>82 — Record—Verity.
    Where the order granting a temporary injunction recited that the case was submitted on the pleadings, it must be presumed to state the truth, and is binding; no effort being made to correct it.
    [Ed. Note. — Por other cases, see Evidence, Cent. Dig. § 104; Dec. Dig. <§»82J
    4. Injunction <&wkey;144 — Temporary Injunction-Issuance.
    Where the cause was submitted on the pleadings and there was enough of the petition undenied to warrant temporary injunction, it may be granted, notwithstanding the rule that the court shall not grant an injunction upon a sworn bill and answer without hearing evidence supporting the allegations of the bill.
    [Ed. Note. — Por other cases, see Injunction, Cent. Dig. §§ 316, 317, 321; Dec. Dig. &wkey;144.]
    5. Estoppel <&wkey;67 — Equitable Estoppel.
    Where a railroad company, after receiving a conveyance of land which contained no restrictions as to the location of. its depot, accepted a deed containing restrictions, placed it on record, and built a depot according to the restriction, it is thereafter estopped to set up the unrecorded conveyance, though its possession of the land was notice of the unrecorded deed; purchasers of other land from the grantor having relied on such conveyance.
    [Ed. Note. — For other cases, see Estoppel, Cent. Dig. §§ 163, 164; Dec. Dig. <&wkey;>67.]
    Appeal from District Court, Kerr County; R. H. Burney, Judge.
    Action by H. Mosel and others against the San Antonio & Aransas Pass Railway Company. From a decree granting a temporary writ of injunction, defendant appeals.
    Affirmed.
    Boyle & Storey, of San Antonio, for appellant. J. R. Burnett and I-I. C. Geddie, both of Kerrville, for appellees.
   FLY, C. J.

This is a second appeal of this case, the cause having been reversed on the former appeal because a general demurrer was sustained to the petition. Mosel v. Railway, 177 S. W. 1048. On the trial, from the result of which the present appeal is prosecuted, the court entered a decree granting a temporary writ of injunction, restraining the removal of appellant’s depot from the present location. It was alleged in the petition that a contract was entered into between appellant and the citizens of Kerrville in 1886 for the construction of the railroad to that place; that it was completed in 1887; and that before and at that time the depot was located on the land where it now stands, and appellant admitted the allegations to be true. It also admitted the truth of the allegations that Charles Schreiner made a deed to appellant in 1892 to the land described by ap-pellee, in which deed a part of the consideration was stated to be the maintenance of a depot on the land described and conveyed, and it denied that the land belonging to Schreiner was divided in 1887 into lots by Schreiner, which was not alleged by appel-lees, the allegation being that it was so divided after the deed was recorded in 1892, and that the appellees bought with the conditions of that deed in view. It was admitted that appellant was about to change the location of its depot, and it was not denied that appellees owned land near the present depot, and that it would be damaged in price by a removal of the depot. It was admitted that appellees were taxpayers and had protested against the change intended by appellant. In fact, every material allegation in appellee’s petition was either admitted or not denied. Among other things alleged in the petition was the allegation that it would not be beneficial to the public to move the depot, but that it would be deleterious and damaging to said public. This was denied by appellant, and it was alleged that it would be beneficial to a majority of the people of Kerrville to move the depot, which removal would place the depot nearer the business center of the town.

On the former appeal of this cause it was held that a railroad company could move its depot from one part of a town or city to another location therein, provided it was shown that it was for the benefit of a majority of the inhabitants thereof. It was held in regard to article 6550, Revised Statutes, that it did not apply to the removal of a depot from one location in a town or city to another, and that the only question that could arise in connection with such removal would be whether or not such removal would benefit the general public. Another consideration of the statute in question confirms this court in that view. That article had in view the construction of new railroads, and was intended to remedy the injustice of having routes and depots designated in certain places, and after persons had been induced by such location to make investments by moving to another locality. The designation was to be made before the roadbed was begun, and railroad companies are forbidden to change it after such designation. That law cannot be construed to prevent a straightening of a railroad or the removal of a depot to another spot in a town which would be of greater benefit to its inhabitants. The matter to be remedied was the removal of the general route of a railroad or the change of a depot from one point to another, thereby destroying, not only property valuations, but towns themselves. It cannot be conceived that the location of a depot in a town or city could not be changed under the provisions of that law, no matter how much its present location might discommode the citizens, nor how much they would be benefited by a removal to a more fitting and advantageous site. Moving a depot from one point in a town to another in the same town is not a change of depot grounds within the contemplation of article 6550, and the only burden resting on a railroad company desiring such change would be the production of evidence that would show that the public good would be promoted by such removal.

The burden of showing that such removal, or change, of depot would be beneficial to the interests of a majority of the citizens rested on appellant, and it devolved upon it to introduce testimony, showing that it had the right or authority to move its depot. In this case, however, no testimony was submitted, and the record fails to show that any was offered by appellant. On the other hand it is recited in the order or decree of the court:

“On this July 30, 1915, the application of the plaintiffs in the above-stated cause for a temporary injunction, restraining the defendant, San Antonio & Aransas Pass Bailway Company, from removing its passenger depot off the depot grounds of said company at Kerrville, was duly heard before the undersigned judge of said court pursuant to due notice, and, having heard and considered the third amended original petition and supplemental petition of plaintiffs and the first amended original answer and supplemental answer of said defendant, the matter having been submitted upon said pleadings, and having heard the argument of the respective counsel of the parties, I am of the opinion that the writ should issue as prayed for.”

There is not in the record anything indicating that appellant objected to having the ease submitted on the pleadings, nor that any objection was made to the recitation in the order. The order must be presumed to state the truth, and it is authoritative. No effort was made to correct it if it was wrong, and its recitals cannot be attacked on appeal. The cause having been submitted on the pleadings, and enough of the petition remaining undenied to form the basis for the order, the court did not err in issuing a temporary injunction to maintain the status quo until the cause could be 'fully developed.

Without an' agreement upon the part of appellant to submit the cause on the pleadings, which amounted to an agreement that the admitted facts stated therein would be proved, the proposition of appellant that a court is not authorized to grant an injunction upon a sworn bill and answer, without hearing evidence supporting the allegations of the bill, is well founded. But where it is agreed that the plaintiff will be able to introduce evidence to sustain their sufficient allegations to make out a case, the proposition does not apply.

If, as admitted by appellant, the first deed to it by Schreiner had no conditions as to the location of the depot, but it was not recorded, and afterwards another deed was executed by Schreiner, containing such condition or restriction, and was delivered to and accepted by appellant and placed upon record, and that appellees bought their property after such deed was recorded, appellant would be estopped to set up the unrecorded deed to affect their rights. Appellant cannot be heard to plead an unrecorded deed to deprive people of rights acquired under a deed filed for record by it, which fixed its status towards any purchaser under the terms of the recorded deed without notice of any other deed. Appellant cannot be heard to deny the existence of conditions in a deed when it has recorded the deed and has induced others to purchase land on the good faith of the recitals in the deed. It is undoubtedly true, as contended by appellant, that its possession under an unrecorded deed would be notice of its title to the land, but by afterwards accepting and recording another deed to which conditions were attached, appellant es-topped itself from claiming rights under an unrecorded deed which would be inimical to innocent purchasers. The allegations of appellees’ bill on the subject of the first deed being unrecorded, and the second recorded with its conditions, was not denied by appellant, and consequently the court could take them as being true.

The protest addressed by appellees to appellant against removal of the depot, unless certain things were done, does not show acquiescence upon the part of appellees in the change of location. The protest was ignored by appellant, and no offer was made on its part to comply with the conditions mentioned in the protest.

The judgment is affirmed.
      ®3»Por other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    MILLER v. DAVIS.
    (No. 8285.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 4, 1915.)
    1. VENDOR AND PURCHASER &wkey;>281 — ACTION on Notes — Election to Accelerate — Sufficiency oe Allegation.
    In a suit to collect vendor’s lien notes, an allegation that plaintiff was the owner and holder of all the notes, and had elected to exercise his option and to mature all of them, was a sufficient allegation of the owner’s intention to mature all the notes.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 792-794; Dec. Dig1. <§=>281.]
    2. Process <&wkey; 133 — Service oe Citation-Return — Statute.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1S64, does not require an officer’s return to show the date when he received the citation, but only when the citation was served and the manner of service. Article 1S55 makes it the officer’s duty to indorse on a citation the time when received, and to execute and return it without delay. A citation returnable to a term' beginning July 6, 1914, was returned to the clerk’s office on June 22d, with a return that it had been received on July 17th. Held, that the use of the word “July” instead of “June” was an inadvertence, so that the daim that service was made at an impossible date was not sustainable.
    [Ed. Note. — For other cases, see Process, Cent. Dig. § 164; Dec. Dig. <§=>133.)
    Error from District Court, Eastland County; Thomas L. Blanton, Judge.
    Action by J. S. Davis against C. R. Miller. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    D. 6. Hunt, of Eastland, for plaintiff in error. Scott & Brelsford, of Eastland, for defendant in error.
   BUCK, J.

The defendant in error filed his original petition in the district court of East-land county on the 13th day of June, 1914. The suit was to enforce the collection of certain vendor’s lien notes in said petition mentioned, executed by Charles Pettit, Jr., in part consideration for the land in said petition described, and against C. R. Miller, as subsequent purchaser of said land, for which said notes were given. There were five of said notes in the sum of $350 each. Notes Nos. 1 and 2 had been fully paid at the date of suit, and there remained due and unpaid on note No. 3 $39 principal, and Interest on notes Nos. 3, 4, and 5. The notes provided that the failure to pay any note, or any installment of interest thereon, when due should, at the election of the holder, mature all of said notes. Plaintiff alleged:

“That said plaintiff is the owner and holder of all three said notes, and has elected to exercise his option and to mature all of said notes.”

Judgment was rendered for plaintiff against Charles Pettit, Jr., for $846.48, principal, interest, and attorney’s fees, and for foreclosure. No personal judgment was rendered against defendant Miller, plaintiff in error, but the land was ordered to be sold I divested of any claim of title of said Mil-I ler.

By his first assignment plaintiff in error questions the sufficiency of the allegation in the petition as to the intention of the owner of the said notes to mature them. We think there is no merit in the assignment, and it is accordingly overruled.

Under his second assignment an attack is made on the sufficiency of the service of citation on Charles Pettit, Jr., who has not appealed, and the return thereon by the sheriff of Denton county. Said return is as follows:

Came to hand on the 17th day of July, 1914, at 6 o’clock p. m., and executed in D'enton county, Tex., by delivering to each of the within named defendants in person á true copy of this citation (together with accompanying certified copy of the plaintiff’s petition), at the following times and places, to wit:

The return shows to have been filed in the office of the district clerk of Eastland county on June 22, 1914. It is evident that the officer inadvertently wrote the 17th day of July, 1914, instead of the 17th day of June, 1914, as the date he received the citation. This error is shown, not only by the date of service by said sheriff, but by the date of filing by the district clerk of Eastland county. Therefore we do not believe that the contention of the plaintiff in error that said service was made at an impossible date can be sustained. The term of court to which this citation was returnable convened July 6, 1914. Therefore, if it should be held that the return of the officer is sufficient to show service on June 22, 1914, such service would be sufficient to support the default judgment obtained. The recitation as to the date of service as given above was held to be sufficient in Cloyes v. Phillip, 149 S. W. 549. See, also, O’Donnell v. Kirkes, 147 S. W. 1167. Article 1864, Vernon’s Sayles’ Texas Civil Statutes, does not require that the return of the officer executing the citation shall show the date upon which he received such citation, but only “when the citation was served and the manner of service,” etc. Article 1855 prescribes the duty of the officer as follows:

“It shall be the duty of the sheriff or constable to whom any citation shall be delivered to indorse thereon the day and hour on which he received it, and to execute and return the same without delay.”

Though perhaps we are not called upon to limit by construction the purpose of this last-cited article, yet the writer is of the opinion that its purpose is to give statutory direction to the officer in order to fix his official liability for any neglect in making service and return of citation. But, be that as it may, from the record above quoted we think it is plainly shown that the use of the term “July” instead of “June,” was a mere inadvertence, and that it is plainly shown that the service was made on the earlier date. Nor can we judicially determine, as contended by plaintiff in error that we should, that it is impossible for a citation served in Denton county at 9 o’clock a. m. on any certain date to be filed in the district court of Eastland county some time the same day. Hence this assignment is overruled, and the judgment of the trial court is, in all things, affirmed.

Affirmed.
      <¡&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBUR.Y, J.

text:
    TOMSON v. SIMMONS.
    (No. 7431.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 20, 1915.
    Rehearing Denied Dec. 24, 1915.)
    1.Appeal and Error &wkey;>742 — Assignments op Error — Propositions.
    Under rules 30 and 31 for the Court of Civil Appeals (142 S. W. xiii), declaring that, following the assignments of error shall come propositions of law, and that following the propositions of law shall come a brief statement, in substance, of the proceedings contained in the record sufficient to explain the proposition, assignments not subjoined by propositions or statements cannot be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. <&wkey;>742.]
    2. Appeal and Error <&wkey;264r-J,RESENTATioN op Grounds op Review in'Court Below— Necessity.
    The law, requiring reservation of exceptions to the charge and to the giving or refusing of charges, does not apply to the action of the court in submitting, or refusing to submit, special issues of fact to the jury.
    _ [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1533-1535; Dec. Dig. &wkey;
    3. Appeal and Error <&wkey;742 — Assignments op Error— Sufficiency.
    To entitle an assignment of error to consideration, a statement showing, in substance, the_ proceedings complained of sufficient to explain and support any proposition urged under the assignment should be subjoined so as to save the court the labor of searching the transcript, and where the assignment complained of the refusal to submit additional questions, the questions, as well as the substance of the evidence on those issues, should be shown.
    [Ed. Note. — For other eases, see Appeal and Error, Dec. Dig. &wkey;?742.]
    4. Appeal and Error &wkey;>719 — Assignments op Error — Fundamental Error.
    A statement in argument that plaintiff alleged and proved defendant had unlawfully dispossessed plaintiff of his easement and alleged the forfeiture of such right, where those matters were not submitted to the jury, does not disclose error apparent on the record, since enough is not stated to make out an error of law without requiring the court to search the record.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. &wkey;719.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by John Tomson against J. J. Simmons. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    M. L. Dye, of Dallas, for appellant. Spence & Haven, of Dallas, for appellee.
   RASBUR.Y, J.

We copy appellant’s statement of the nature and result of the suit, which is as follows:

“This was an action brought by appellant against appellee for damages for the unlawful destruction of appellant’s easement to take water from a certain artesian well not yet dug by virtue of the appellant’s 99-year lease thereof. Judgment for appellee.”

Following the foregoing, appellant sets out in full a duly recorded lease executed March 6, 1895, by W. J. and Minnie Bogan, the effect of which is to confer on appellant the right to use the w'ater from an artesian well on the premises of the Logans in the city of Dallas, for a period of 99 years, under certain stipulations and conditions enumerated in the lease, but not necessary to detail from our view of the appeal, and upon which is based appellant’s suit against appellee, who is the present'owner of the land.

Appellant’s first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh assignments of error are presented in consecutive order. To any consideration of any of them appellee in limine objects on tile ground that appellant has failed to subjoin a brief statement, in substance, of such proceedings or part thereof contained in the record, as is necessary and sufficient to explain the proposition asserted; and in connection with the objection so made, the proposition is asserted that by the rules failure to subjoin such statement is an abandonment of the assignment. Rule 30 (142 S. W. xiii), for the government of this court, provides, among other things, that following the assignments of error in the brief shall come propositions of law, and rule 31 provides, among other things, that following the propositions of law shall come—

“a brief statement in substance of such proceedings or part thereof contained in the rec- or(j * * * sufficient to explain and support the proposition.”

Appellant has in his brief complied with neither rule since there is in his brief under each assignment neither proposition nor statement, although the objection is directed alone to the failure to subjoin the statement. The assignments enumerated are grouped, that is to say, they appear in the brief in their numerical order and under neither singly nor as a group is there to be found the statement required by the rule. That such statements must be made, and, when not made, that the assignments will not be considered, has been so often determined that we deem the citation of authority unnecessary.

The twelfth assignment of error is that the court erred in refusing to grant appellant a new trial on the twelfth ground thereof, which was—

“because the ‘additional questions’ by the court were wholly immaterial, and were calculated to lead the jury to believe that the court was of the opinion that plaintiff had abandoned and lost his lease and easement by nonuser, although such nonuser was forced on plaintiff by the wrongful acts of defendant and those under whom defendant claimed.”

Appellee also objects to a consideration of said assignment because:

“There was no bill of exceptions reserved by appellants to the court’s charge.”

The recent amendments to the Practice Acts, however, do not apply to the action of the court - in submitting, or refusing to submit, special issues of fact to the jury, since submitting such issues is in no sense the giving, or refusing to give, a special charge. Shaw v. Garrison, 174 S. W. 942. However, the assignment is .not entitled to be considered, because there is not subjoined thereto any statement showing, in substance, the proceedings complained of sufficient to explain and support any proposition urged under the assignment. Incidentally no prop--osition is asserted. Not only ought the “additional questions by the court” to have been subjoined as directed by the rules, but the substance of the evidence on the issue of abandonment and nonuser should also have been shown. Without such statement we are not only compelled to search, the transcript for the “additional questions” complained of, but compelled as well to examine all the evidence in the statement of facts in order to intelligently pass upon the merits of the assignment. We have many times, for obvious reasons, held we could not perform such duties when so clearly imposed upon counsel. Accordingly we cannot consider the twelfth assignment.

It is said by appellant in argument that there is fundamental error in the case, in “that plaintiff alleged and proved that defendant had unlawfully dispossessed plaintiff of his easement to take said water, and defendant alleged that plaintiff had forfeited and abandoned such right, but neither of these issues was submitted to or decided by the jury.” Such a statement does not disclose error apparent upon the record, since enough is not stated to make the error of law “which pervades the case obviously apparent without requiring the court to search through the record to find error.” Tex. & Ft. Smith Ry. Co. v. Brass, 175 S. W. 778.

Eor the reasons stated, the judgment of the court below is affirmed.
      <S=oFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    TAYLOR v. JACKSON et al.
    (No. 8273.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 27, 1915.)
    1. Witnesses <&wkey;37— Competency.
    A witness who stated that he knew the custom in the vicinity of plaintiff’s land as to the distribution of Colorado grass hay between landlord and tenant is competent to testify thereto.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 89-87; Dee. Dig. <¿^37.]
    2. Customs and Usages &wkey;jl9 — Evidence.
    In an action to recover from a farm tenant Colorado grass hay grown on demised land, where the tenant offered evidence of a custom allowing tenants to retain a portion of such hay, testimony by the landlord that there was no such custom in the vicinity and that her other tenants had not claimed the hay is admissible; the transactions with the other tenants tending to show that the custom was not a general and uniform one.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 41-43, 45, 46; Dec. Dig. &wkey;>19.]
    3: Landlord and Tenant @^331 — Damages —Evidence.
    Where after the institution of a suit to recover hay grown on demised land the landlord sequestered and later replevied the hay, evidence of the price at which defendant had sold the hay is admissible on the question of his damages on his plea in reconvention; for, there being no evidence that the tenant was insolvent or had been given a special price to enable the purchaser to collect a bad debt, such evidence was admissible on the issue of special damages.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. &wkey;>331.]
    4. Trial <&wkey;350 — Special Damages — Submission.
    Where there was nothing to show defendant’s insolvency or that by reason thereof he was enabled to sell the replevied property at an unusual price so that the purchaser could collect a bad debt, the issue of special damages in depriving defendant of the benefit of the contract caused by the act of replevying the property is properly submitted.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 828-833; Dec. Dig. ©=>350.]
    5. Appeal and Error <§=>1062 — Verdict—Answer to Interrogatories.
    Where answers to other interrogatories showed the number of bales of hay replevied by plaintiff which had been sold by defendant, no complaint can be made that the court received the verdict without requiring a finding as to the specific number of bales which defendant had sold.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. ©=> 1002.]
    6. Customs and Usages ©=>19 — Evidence — Admissibility.
    Where a tenant, by virtue of a custom, claimed part of a crop_ of Colorado grass hay grown on the land, evidence of the custom in the locality, though not in the immediate vicinity, is admissible.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 41 — 43, 45, 46; Dec. Dig. ©=>19.]
    7. Landlord and Tenant ©=»331 — Farm Leases — Breach op Covenant.
    A farm lease provided for the cultivation of cereals and cotton, but did not provide for the cultivation of hay. After a crop failure, hay was raised, and the landlord claimed the whole crop. The lessee asserted that the landlord consented to the planting of the premises in hay, and that there was a general custom that he should receive a portion of it. It appeared that before the hay had all been gathered the landlord entered and prevented the tenant from gathering the remainder. Reid, that, if the general custom did not exist or become part of the contract, the law would imply an obligation on the part of the landlord to compensate the tenant for his services, in which case his measure of damages would be the value of the services already rendered, plus the reasonable value of the services which would have been rendered, less the amount he might have earned at other employment by the exercise of ordinary diligence.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. ©=>331.]
    8. Landlord and Tenant ©=>331 — Farm Leases — Covenants.
    Where by virtue of a special custom a tenant was entitled to a portion of the Colorado grass hay produced on the premises, the lessor, who wrongfully took the hay, cannot offset as against the tenant the amount she expended after breach in order to harvest it.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 1360-1362, 1379-1387; Dec. Dig. <§=>331.]
    9. Appeal and Error ©=5248 — Presentation op Grounds op Review in Court Below— Necessity.
    Where appellant urged no exception to the sufficiency of defendant’s plea, and failed to complain of the court’s failure to submit material questions to the jury, those matters cannot be complained of on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1432, 1435-1439, 1443, 1447-1452, 1454-1459, 1462, 1464-1468; Dec. Dig. ©=>248.]
    10. Customs and Usages ©=>12 — 'Validity op Custom.
    Customs and usages applicable to the letting of farms which are certain, uniform, and uninterrupted, and long continued in the locality, are binding on parties to a lease of farm lands, and they are presumed to know them.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. §§ 23, 24; Dec. Dig. ©=>12.]
    11.Customs and Usages ©=>17 — EnpoboeMENT.
    Caution should be used in enforcing special customs and usages varying a contract.
    [Ed. Note. — For other cases, see Customs and Usages, Cent. Dig. § 34; Dec. Dig. ©=>17.]
    Appeal from Young County Court; W. P, Stinson, Judge.
    Action by Mary S. Taylor against G. W. Jackson and another, in which defendant Jackson pleaded in reconvention. From judgment for defendant Jackson, plaintiff appeals.
    Reversed and remanded.
    Fred T. Arnold, of Graham, and Arnold & Taylor, of Henrietta, for appellant C. W. Johnson, of Graham, for appellee.
   DUNKLIN, J.

Mrs. Mary S. Taylor instituted this suit against G. W. Jackson, her farm tenant, to recover Colorado grass hay which had grown on the leased farm and had been cut and baled by Jackson. After the institution of the suit the plaintiff sequestered the hay, and later replevied it. From a judgment denying the plaintiff a recovery and in favor of Jackson for damages on his plea in reconvention, plaintiff, Mrs. Taylor, has appealed. The case was before us on a former appeal, and the opinion of this court upon the question then presented appears in 166 S. W. 413.

The land was leased to Jackson and Ms associate, J. F. Biffle, for the year 1911 by written contract, by the terms of which the tenants agreed to cultivate the same in cotton, corn, wheat, millet, oats, sorghum, and maize, and to give to the landlord as rent one-fourth of the cotton and one-third of the other crops, but the lease contained no reference to any crop of hay. Upon the former appeal we held that the written lease did not confer upon the tenants any right to the Colorado grass hay in controversy, which grew upon part of the land after the crops planted thereon by the tenant had failed by reason of the severe drought. The proof showed that, while the lease was to Biffle and Jackson, Jackson was, in fact, a subtenant of Biffle, who had originally leased the land, but who had no interest in the crops.

In his answer the defendant claimed that subsequent to the written lease a parol agreement was made with the landlord, by the terms of which he had the right to harvest the hay the same as any other crop, the allegation setting forth that agreement being as follows:

“About the 17th day of June, 1911, the defendant informed the plaintiff that the corn had failed, and that he had failed to get a stand of cotton, and that reliance must be had on feed-stuff. The defendant stated that the only chanco was to try maize or rely on Colorado grass for a crop in event of late rains, without which nothing would do. Thereupon the plaintiff told the defendant to determine what was best course to pursue to make the most for plaintiff and defendant. The plaintiff got what information he could, and determined that Colorado hay crop was more promising and more desirable and valuable than maize. Subsequent results justified defendant’s conclusion to rely on the hay crop, and about 2,800 bales of hay were made on the land. If the plaintiff had not left it to the judgment of the defendant to determine the course to pursue in adjustment of the crops on the failure of the spring crops, the defendant would have replanted it in maize, millet, and sorghum. The defendant charges that the written contract did not contemplate a failure of the spring crops, nor provide for such emergency, and defendant relied on plaintiff’s statement to the defendant that he was authorized to determine what was for their mutual benefit, and the defendant judged wisely.”

Following that allegation the defendant further alleged that it was the custom and common understanding in that vicinity for the tenant to give to the landlord as rent one-third of any Colorado grass hay in shocks, or one-fourth in bale, free of all charges. He further alleged that the yield of hay .was much larger than it would have been because of the cultivation of the land for the crops which had failed before the grass sprang up.

The verdict of the jury was upon special issues, and one of the findings was that the parol contract pleaded by the defendant was, in fact, made as alleged.

In order to establish the custom pleaded by the defendant, the deposition of J. 13. Parsons was read. ■ One of the questions propounded to him was:

“If you know, state what the custom was in the vicinity of the plaintiff’s land for the year 1911 as to the distribution of Colorado grass, between the landlord and tenant, produced on the land that had been cultivated in other crops that had failed on account of climatic conditions. State what part of such hay the tenant received and what part the landlord received, according to the custom of the vicinity of the premises.”

To that question the witness answered as follows:

“The third in the shock or the fourth in the bale. The landlord got one-third in the shock or one-fourth in the bale, and the tenant two-thirds in the shock or three-fourths in the bale.”

The objection to this testimony was that the witness had not qualified, in that he had not stated that he knew of such custom in that particular section of the country. The form of the question being, “If you know,” we think the answer of the witness was equivalent to a statement that he did know of such custom. Accordingly the assignment is overruled.

Plaintiff offered to prove by herself as a witness the following facts:

“That she was familiar with the' custom of the country relative to the cutting of Colorado grass hay, and that the same was that the landlord was entitled to the crop of Colorado grass hay springing up on the place, and that the tenant was not entitled to any of it, and that her other tenants on land adjoining the. defendant Jackson did not claim the hay growing on their land, but that the plaintiff had cut the same herself, and that the other tenants did not object thereto, or claim any of the hay on the land rented by them.”

The defendant Jackson objected to that testimony, on the ground that the same was immaterial and not binding upon him. Appellant has addressed an assignment of error to the action of the court in sustaining that objection. It appears from the bill of exception that the evidence was offered as a whole. In appellee’s brief no contention is made that the testimony relative to the custom of-the country Was not admissible, but it is insisted that proof of individual transactions with other tenants was clearly so, and that, as the evidence was offered as a whole, no reversible error is shown. We are of opinion that none of that testimony should have been excluded. The transactions with other tenants tended to show that the custom mentioned by Parsons was not a general and uniform custom, as his testimony indicates, and hence tended to rebut the presumption which otherwise might obtain that plaintiff contracted with reference to it. S Jones’ Commentaries on Evidence, §§ 463, 464, and other authorities hereinafter cited. It should be noted further that the testimony of the witness Parsons, shown above, as well as all other witnesses introduced by defendant to prove custom, and which was to the same effect, and all of which was offered generally without the limitation of its' purpose placed upon such evidence on the former trial, bore only indirectly upon the issue of custom, if any, obtaining under a specific contract of employment to harvest hay, with no express agreement for compensation to the employé, as pleaded by the defendant. Notwithstanding that fact, plaintiff should have been allowed to rebut such evidence by proof that no such custom prevailed under the circumstances related by defendant’s witnesses.

Over objection of the plaintiff the defendant was permitted to introduce in evidence the testimony of the witness D. G. Vick that he had bought the hay from the defendant Jackson and was to pay him for the same at the rate of 50 cents per bale, which sum was to be paid, not in cash, but was tq be credited upon an account owing to-him by Jackson for goods sold. The ground of plaintiff’s objection was that the measure of defendant’s damages would be the market value of hay upon the farm, and for the further reason that plaintiff had no notice of any sale to Vick, except through Vick himself, which came to her after the hay had been seized under a writ of sequestration, that the price offered by Vick was not the market value of the hay, and that the offer-was made merely for the purpose of collecting a bad debt. The same contention, that the market value of the hay in controversy at the time of its seizure was the only correct measure of the defendant’s damages, is. also made the basis of complaint of the ruling of the court in submitting to the jury-special issues directing the jury to determine whether or not the defendant had the hay sold to Vick when it was levied on by the writ of sequestration, if so, at what price per hale and how many bales were sold, and whether or not the plaintiff had had notice of such sale prior to the time she replevied the hay.

In his answer the defendant pleaded specially that prior to the levy he had contracted to sell the hay to Vick at 50 cents per bale, and that plaintiff had notice of such contract at the time she replevied the hay, and upon those facts he sought a judgment for special damages in the sum he would have realized from such sale. The findings of the jury in answer to special issues 5, 6, 7, and 8 are made the basis of the claim for such special damages.

We are of the opinion that there was no error in the action of the court in admitting the testimony of Vick referred to, and in submitting the issue of special damages, since, under the circumstances, they were recoverable; no contention being made on either trial that Jackson was insolvent at the time. We so held on the former appeal of this case.

In answer to interrogatory No. 3, the jury found that the plaintiff had received 2,147 bales of hay, and in' answer to the fourth interrogatory that the market value of such hay was 32 cents per bale. The fifth interrogatory and the answer of the jury thereto are as follows: “Did the defendant G. W. Jackson have the hay sold to D. G. Vick.” Answer: “Yes.”- Thus it appears that the jury found that Vick had contracted to buy the entire number of 2,147 bales. In view of that finding, it was unnecessary to repeat the same in answer to the sixth interrogatory. Accordingly appellant’s assignment, in which complaint is made of the action of the court in receiving the verdict without requiring a finding by the jury in answer to the sixth interrogatory of the specific number of bales which Vick had contracted to buy, is overruled.

To rebut proof introduced by defendant of the alleged custom relative to Colorado grass hay grown on leased land, plaintiff offered Prank Herron, who testified that he owned land growing Colorado grass about two miles from the farm rented by defendant and was “acquainted with the custom of the country in reference to harvesting Colorado grass hay growing up on the premises of the landlord,” but did not know the custom in Goose Neck Bend, the immediate vicinity of plaintiff’s farm. Plaintiff then offered to prove by that witness that the custom of the country was that the tenant would have no right to any part of such hay springing up on the land after the crops planted on the land by the tenant' have been gathered or have failed in the absence of a special contract with the landlord for such interest, and that the division of the hay between the landlord and tenant would be governed by the terms of such special contract. Defendant objected to the proof so offered, on the ground that it did not appear that the witness was acquainted with the custom in the vicinity of plaintiff’s farm, and that objection was sustained. We are of opinion that the court erred in that ruling, as the test applied for a qualification of the witness to give such testimony was too restrictive, especially in the absence of any evidence to show that the alleged custom was peculiar to Goose Neck Bend, as distinguished from the rest of the country.

The special contract alleged by the defendant as a basis for his counterclaim did not include as one of its terms a specific agreement between the parties that the tenant should have three-fourths of the hay and plaintiff one-fourth. The contract alleged was silent upon the question of compensation which the tenant should receive for his services in cutting and baling the hay; and, in the absence of some custom which would control and determine the consideration he should receive for such services, the law would not give him any title to any part of the hay, but would imply an obligation on the part of the landlord to pay in money the reasonable value of such services. And if such custom did not exist, or did exist, but did not impliedly enter into and become a part of the special contract, then the measure of defendant’s damage for breach of the contract would be the reasonable value of services performed by defendant prior to the breach, plus the reasonable value of such services as he would have performed thereafter but for the breach, less the amount, if any, he did earn or by the exercise of ordinary diligence could have earned at some other employment during the period which reasonably would have been required to finish harvesting the hay- crop.

But, if the custom pleaded became’ a part of the contract, then title to three-fourths of the hay would have vested in the tenant, the reasonable market value of which was the measure of his damages for the breach. And in that event, and upon the principle of equitable estoppel, plaintiff would not be entitled to claim as an offset or credit against such value the amount she had expended after such breach in order to harvest the hay. Jackson v. Taylor, supra, and authorities there cited.

Thus it will be seen that whether or not there was such a custom as pleaded by defendant, and whether or not, if existent, it entered into and became a part of the special contract of employment to harvest the hay, were material issues to be determined by the jury, since affirmative findings upon those issues, in connection with further finding that said special contract of employment was made, would perhaps largely increase the amount of recovery by defendant upon Ms counterclaim for damages. As noted already, the alleged custom was not pleaded as expressly entering into the contract of employment, nor that it was known and assented to by plaintiff at the time, but plaintiff urged no exception to the sufficiency of the plea on that account. See Gano v. Palo Pinto Co., 71 Tex. 99, 8 S. W. 684; 12 Cyc. 1041. The jury did not return any finding •upon that issue, but plaintiff does not complain of the failure of the court to submit it to them, nor is there an assignment in the record complaining of any supposed insufficiency of evidence to support the presumed finding by the court in favor of defendant on' that issue.

It is well settled that a custom or usage, even when confined to particular locality, may be binding upon parties to a transaction, provided it measures up to certain tests, some of which are that it must be certain, uniform, and uninterrupted and so general and long continued in that community that the parties to be affected by it will be presumed to have knowledge of it. Mo. Pac. Ry. v. Fagan, 72 Tex. 127, 9 S. W. 749, 2 L. R. A. 75, 13 Am. St. Rep. 776 ; 2 Elliott on Contracts, §§ 1677, 1678, 1697; 12 Cyc. 1034 to 1041, also 1069; Uawson on Usages & Customs, § 31, par. 62. According to the general rule, persons engaged in any particular business having usages and customs established in accordance with the legal requirements necessary to make them binding customs or usages are conclusively bound thereby, regardless of their actual ignorance thereof, in the absence of any contract having a contrary effect, but that the same are not binding upon a stranger to such business unless it be shown by proof that he was aware of such customs or usages apd contracted with reference thereto. 2 Elliott on Contracts, §§ 1696, 1697; 12 Cyc. 1041 to 1047.

A further rule of law is that caution should be exercised by courts in enforceing usages and customs; for, as said by Judge Storey:

“I own myself no friend to the almost indiscriminate habit of later years of setting up usages or customs in almost all kinds of business and trade to control, vary, or annul the general liability of parties under the common law, as well as under the commercial law. It has long appeared to me that there is no small danger in admitting such loose and inconclusive usages and customs, often unknown to the particular parties, and always liable to great misunderstandings and misinterpretations and abuses, to outweigh the well known and settled principles of law, and I rejoice to find that of late years the course of law, both in England and America, have been disposed to narrow the limits of the operation of such usages and customs, and to discountenance any further extension of them.” 2 Elliott on Contracts, § 1674.

See, also, Wooters v. Kauffman, 67 Tex. 488, 3 S. W. 465.

These general observations are. suggested for the guidance of the trial court upon another trial of this case.

We note in the statement of facts the testimony of plaintiff that, in addition to expenses she herself incurred to finish harvesting the hay, she also paid labor accounts incurred by defendant Taylor for labor performed in harvesting the hay prior to the seizure under the writ of sequestration, and it does not appear that she was allowed credit for sums so paid. Appellant has not raised the question whether or not that expense should be considered on the same plane with expenses incurred by- plaintiff herself, and for which she was not allowed credit; but, in view of another trial, we suggest that perhaps, under a proper showing, plaintiff might be entitled to credit for those sums, even if she be held to answer for the value of three-fourths of the hay crop.

For the reasons indicated, the judgment is reversed, and the cause remanded for another trial.
      <&wkey;For other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes

      <§^3For other eases see same topic and KEY-NUMBER in alUKey-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    ST. LOUIS, B. & M. RY. CO. et al. v. KNOWLES.
    (No. 5540.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 8, 1915.)
    1. Courts <9=3121 — Jurisdiction—Amount in CONTROVERSY.
    The attorney’s fee sought to be recovered under authority of Rev. St. 1911, art. 2178, in an action for the value of a mule killed by defendant’s train, is part of the amount in controversy.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 410, 413-426, 428, 437, 450, 452, 458, 459, 466; Dec. Dig. <§=>121.]
    2. Receivers <§=>174^-Liability — Torts before Appointment.
    Judgment against the receiver for a tort of the railroad committed before his appointment is unauthorized, absent permission of the federal court appointing him to’ sue him.
    [Ed. Note. — For other cases, see Receivers, Cent. Dig. §§ 333-343; Dec. Dig. <§=>174.]
    3. Railroads <§=>415 — Killing Animals — Negligence — Crossing Signals.
    Failure of a train approaching a crossing to give the statutory signals is negligence per se only as to those using, or about to use, the crossing, and not as to an animal feeding near by.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1476-1482; Dec. Dig. <§=3415.]
    4. Railroads <§=>443 — Killing Animals — Proximate Cause — Evidence.
    Evidence that a mule, feeding near a railroad and crossing, frightened on seeing an approaching train, ran to cross the track and was struck by the train does not warrant a finding that failure to give the crossing signal was the proximate cause of the accident; it being a matter of conjecture whether that would have made any difference.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. <§=>443.]
    Appeal from San Patricio County Court; M. A. CMlders, Judge.
    Action by J. W. Knowles against the St. Louis, Brownsville & Mexico Railway Company and another. Judgment for plaintiff, and defendants appeal.
    Reversed and rendered.

      Claude Pollard, of Kingsville, and Robt. W. Stayton, and David M. Picton, Jr., both of Corpus Christi, for appellants.
   MOURSUND, J.

Appellee sued the St.

Louis, Brownsville & Mexico Railway Company and Prank Andrews, receiver of said company, for $200, the alleged value of a mule struck and killed by a locomotive and cars alleged to have been operated in a negligent manner at a place on the track near where the same crosses Rachal avenue in the town of Sinton; also for $20 as reasonable attorney’s fee. This is the second appeal in this case. Por opinion delivered upon the first appeal, see 171 S. W. 245. The pleadings were amended after the cause was remanded, and plaintiff’s petition contained the allegation that the mule was struck by the train on or about July 2, 1913, and that Prank Andrews was appointed receiver of said company by the United States District Court for the Southern District of Texas about the 5th day of July, 1913.

By the first assignment of error it is contended that the amount in controversy does not exceed $200, and that therefore the county court was without jurisdiction. The same contention was made upon the first appeal, and overruled. We overrule the assignment for the reasons stated in the former opinion.

It is apparent from the pleadings and the undisputed testimony that the injury to the mule occurred prior to the appointment of Prank Andrews as receiver of the St. Louis, Brownsville & Mexico Railway Company by the United States District Court for the Southern District of Texas. It was not alleged nor proven that permission had been given by said court to bring this suit against the receiver. The verdict and judgment, in so far as the same relate to the receiver, are therefore without authority of law, and assignments Nos. 2 and 3 are sustained. See Andrews v. King, 170 S. W. 862; Andrews v. Jeter, 171 S. W. 838; St. Louis, B. & M. Ry. v. Dawson, 174 S. W. 850.

The court instructed the jury in effect that the failure to comply with the statute requiring the blowing of the whistle and the ringing of the bell at the distance of at least 80 rods from the place where the track crosses any public road or street, and to keep the bell ringing until the train crosses such road, or street, or stops, constitutes negligence under the law. This was followed by the further instruction that before the defendants could be held liable, it must be shown that there was such negligence, and that such negligence was the proximate cause of the death of the mule.' The court then required the jury to answer the question: “Was there any such negligence on the part of defendants as above set out, and as alleged by plaintiff?” to which the jury answered: “Yes; did not ring the bell.” The jury also found that ,such negligence was the proximate cause of the death of the mule, and the judgment is based upon such findings.

Plaintiff pleaded that Rachal avenue, a public street, crosses defendant’s track about 11 rods of south of the place at which the mule was struck by the train. The evidence shows that the mule was feeding near the track at a distance of from 25 to 55 yards from the street; that when he saw the train he ran towards the street, but diagonally at an angle of about 22 degrees, so that he would have crossed the track had he not been struck, but that before he could cross the track, and before he reached the street, the train struck him. Under the facts as pleaded and proved, it was error to instruct the jury that the failure to give the statutory signals constituted negligence. Such failure only constituted negligence per se as to those using, or about to use, the crossing. M., K. & T. Ry. Co. v. Saunders, 101 Tex. 257, 106 S. W. 321, 14 L. R. A. (N. S.) 998, 16 Ann. Cas. 1107; Railway v. Huegle, 158 S. W. 198; Railway v. Bandy, 163 S. W. 341; Railway v. Bennett, 126 S. W. 607. The error is a material one, as it relates to the only issue upon which the jury found there was negligence. Assignments Nos. 5 and 8 are sustained.

By the sixth assignment it is contended that the finding that the failure to ring the bell was the proximate cause of the death of the mule is unsupported by the evidence. R. T. Rutledge testified that he saw the mule feeding about 10 or 12 feet from the track at about 8 o’clock in the evening; that the engine must have been 75 yards or 75 steps from the mule at the time when the mule saw it coming, raised his head, became frightened, and ran towards the railroad in a diagonal line; that he ran about 25 feet when he was struck, and then jumped to the side; that the train was close to the mule when he began to run—about 25 steps from him. He supposed the headlight frightened the mule, lie further testified that there were some pieces of timber piled up between where the mule was feeding and the approaching engine. Appellee testified that on the Sunday after the mule died he and Rutledge examined the ground in the vicinity of the place where the train struck the mule; that said place, as shown by the tracks of the mule, was 45 or 46 yards from the street crossing; that the tracks indicated that the mule was about 30 feet from the railroad track when he started in a southern direction; that the tracks made by the mule also indicated that at first he was walking or trotting, and up nearer to the track they were deep, and indicated that he had been running, and at a distance of 60 or 70 feet showed that the mule had made a jump of about 8 feet away from near the railroad track.

We conclude that the evidence fails to support the finding that the failure to ring the bell was the proximate cause of the death of the mule. It is altogether a matter of conjecture whether the ringing of the hell would have altered matters in any respect. And it must be held that the assignment of error is well taken. G., C. & S. F. Ry. v. Bennett, 126 S. W. 607; T. & P. Ry. Co. v. Bailey, 150 S. W. 962; M., K. & T. Ry. v. Parker, 37 S. W. 973; T. & N. O. Ry. v. Langham, 95 S. W. 686; Southern Kansas Ry. Co. v. Graham, 155 S. W. 653.

This case has been twice tried, the evidence has been fully developed, but, as it is insufficient to sustain a finding that the failure to ring the bell was the proximate cause of the death of the mule, and no other theory of negligence was requested to be submitted upon this trial, the judgment is reversed, and judgment rendered by this court that plaintiff take nothing by his suit against the St. Louis, Brownsville & Mexico Railway Company, and that the cause be dismissed as to Frank Andrews, receiver.
      <g=3Por other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    PERRY v. MARTIN.
    (No. 5546.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 1, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1. Public Lands <§=>178 — Texas — School Lands — Actions—Defenses—Estoppel.
    Plaintiff, who had received a deed from settlors and himself settled on school lands, and through his predecessors in interest and himself had completed the occupancy and received Ms certificate therefor, was not estopped to claim title as against the defendant to whom the patent had been issued, by his knowledge of an agreement of the defendant with his former partner that the partner should acquire the land and deed it to the defendant, since, to acquire it, he must have sworn that he was taking it for himself, and no one else; the contract therefore being contrary to law, fraudulent, and not enforceable.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. <§=>178.]
    2. Public Lands <§=>178 — Texas — School Lands — Rights of Pubchasees.
    Tinder Vernon’s Sayles’ Ann. Civ. St. 1914, art. 5436, providing that persons having settled on public lands may sell them, whereupon the purchaser must complete the occupancy and otherwise perform the acts required by statute of an original purchaser, making application and filing his own obligation, a conveyance by an original settlor does not vest in the grantee any title to the land, but merely gives him the right to make application for the land, so that one who derived the right to apply from a set-tlor, though with knowledge of a claim of another, and thereafter perfected his right by application and occupancy, could assert title as against such claimant to whom the patent was wrongfully issued.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 579-582; Dec. Dig. <§=>178.]
    3. Public Lands <§=>173 — Texas — School Lands — Title—Time fob Contest.
    Under Rev. St. 1911, arts. 5458, 5459, providing that one claiming an interest in school or any public lands which have been sold or leased must sue within one year to assert his right, and that failure to sue within that time is conclusive evidence that the sale complied with statutory requirements, where one purchased from a settlor his right to school lands and perfected his title according to statutory requirements, but received no patent, his title was good as against another claimant, who had failed to sue within one year, though he held a patent to the land.
    [Ed. Note. — For other cases, see Public Lands, Cent. Dig. §§ 544-551; Dec. Dig. <§=>173.]
    Error from District Court, Kinney County; W. C. Douglas, Judge.
    Action by H. G. Martin against Tom Perry. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Frank Lane, of Brackettville, and Jones & Thurmond, of Del Rio, for plaintiff in error. Martin & Martin, of Uvalde, and Sanford & Wright, of Eagle Pass, for defendant in error.
   MOURSUND, J.

Defendant in error, H. G. Martin, on September 13,1913, sued Tom Perry, plaintiff in error, in trespass to try title, seeking to recover l,2877/io acres of school land, consisting of one entire section and portions of three others, in Kinney county. Plaintiff in error answered by plea of not guilty, the three-year statute of limitations, the one-year statute of limitation, and, specially, a plea that plaintiff was equitably es-topped from claiming the lands sued for. The nature of this plea will be stated fully in disposing of the assignments of error. Judgment was rendered by the court in favor of Martin. The four entire sections of school land were originally purchased from the state by F. M. Johnson. One section was awarded November 23, 1905, and the other three on December 9, 1905. He sold the same to J. H. Walker before the completion of the three years’ occupancy. Walker became substitute purchaser, and before completing the three years’ occupancy sold said land to O. S. Harper. O. S. Harper became substitute purchaser, and sold the land to A. B. Harper before completing the three years’ occupancy, and said A. B. Harper became substitute purchaser. On December 23, 1908, in a suit in the district court of Kinney county by Tom Perry against A. B. Harper, a judgment was rendered in favor of Perry for the land in controversy in this case, and on January 18, 1909, in pursuance of the terms of the judgment, A. B. Harper and wife conveyed such land to Tom Perry. At that time, however, the three years’ occupancy of the land had not been completed. Said deed was filed for record on March 19, 1909. Perry did not become substitute purchaser nor settle upon the land. On August 31, 1909, A. B. Harper conveyed the four entire sections to H. G. Martin, defendant in error, but at that time the three years’ occupancy had not been completed. On October 25,1909, A. B. Harper and wife conveyed the four sections to H. T. Ooston, and at that time the three years’ occupancy had not been completed. Ooston filed his applications, affidavits, and obligations in the land office, became substitute purchaser, and. settled upon the land. On January 29, 1910, Coston and wife conveyed said four sections to H. G. Martin, and at that time the three years’ occupancy still remained incompleted. On July 18, 1910, Cos-ton filed in the land office a partial proof of occupancy, and on the same day Martin filed his applications, affidavits, and obligations and became substitute purchaser, settled upon the land, and completed the three years’ occupancy. On August 23, 1910, Martin filed his proof of occupancy, and on August 29, 1910, certificate of occupancy was issued to him, which was filed and recorded in the Deed Records of Kinney county on September 5, 1910. On March 14, 1911, the portions of the four sections in controversy in this suit were patented to Tom Perry.

The plaintiff in error’s first contention is that the court erred in excluding evidence in substantiation of his special plea of estoppel, the substance of which is as follows: That plaintiff in error and A. B. Harper were partners in the ranching business, and during the existence of such partnership they purchased from O. S. Harper the four entire sections of school land, of which the lands in controversy constitute a portion; that the deed was taken in the name of said A. B. Harper, with the understanding that he was to complete the three years’ occupancy and hold the title for the benefit of the firm until such occupancy was completed; that after-wards plaintiff in error sued Harper for dissolution of the partnership and partition of the property, and a board of arbitration was agreed upon to partition the property, which board awarded to plaintiff in error the lands in controversy, and such award was accepted by plaintiff in error upon the express agreement and understanding that said Harper would continue his occupancy until the completion of the three-year period, and file in the land office a certificate of such fact; that judgment was entered in accordance with such award, and a quitclaim deed executed by Harper and wife to appellant pursuant to such award and judgment; that said Harper, •being desirous of disposing of the portions of said sections of school land awarded to him, conveyed to Coston the entire sections, after fully informing him of the understanding and agreement existing between plaintiff in error and said Harper, and upon the understanding and agreement that Coston would complete the occupancy for the benefit of plaintiff in error as well as himself; that Coston and his wife made their conveyance to defendant in error, Martin, after giving him the same information given Coston by Harper and upon the same understanding and agreement that the portion of the sections in controversy was conveyed only for the purpose of enabling Martin to complete the three years’ occupancy for plaintiff in error’s benefit. This testimony would show that whatever title was acquired by Martin to the land in controversy was acquired under an agreement to hold the same in trust for Perry, but the objection interposed was to the effect that the agreement throughout was illegal, and therefore the courts should not give effect to it. It is clear that the agreement between A. B. Harper and Perry, assuming it to have been made as alleged, contemplated the acquisition by Perry of the title to school land without the required settlement and occupancy, and that, in violation of law, Harper should purchase land for the benefit of Perry and make affidavit that he was not purchasing the same for any other person. Such a contract falls within that class of contracts which the courts refuse to enforce. The contracts alleged to have been made by the substitute purchasers succeeding said Harper are based upon the original illegal contract, and provide for carrying the same out in further disregard of the laws of the state. The courts will leave parties to such collusive contracts in the position it finds them, and it must therefore be held that no error was committed in refusing to permit evidence of such contracts to be adduced. Brown v. Brown, 132 S. W. 887; Rogers v. Blackshear, 128 S. W. 938. The first five assignments of error are overruled.

It is also contended that plaintiff failed to show title in himself because his title is dependent upon a conveyance made by A. B. Harper and wife after they had conveyed to Perry the land in controversy and after Perry had duly recorded his deed.

The statute relating to transfers of school land provided:

“Purchasers prior to August 12, 1907, may also sell their lands, or a. part of the same, in quantities of forty acres, or multiples thereof, at any time after the sale; and in such cases the vendee, or any subsequent vendee, or his heirs or legatees, shall file Ms own obligation with the commissioner of the General Land Office, together with the duly authenticated conveyance or transfer from the original purchaser and the intermediate vendee’s conveyance or transfer, if any there be, duly recorded in the county where the land lies, or to which said county may be attached for judicial purposes, together with his affidavit, in case three years’ residence has not already been had upon said land and proof made of that fact, stating that he desires to purchase the land for a home, and that he has in good faith settled thereon, and that he has not acted in collusion with others for the purpose of buying the land for any other person or corporation, and that no other person or corporation is interested in the purchase, save himself; and thereupon the original obligation shall be surrendered or canceled or properly credited, as the case may be, and the vendee shall become the purchaser direct from the state, and be subject to all the obligations and penalties prescribed by law, and the original purchaser shall be absolved in whole or in part, as the case may be, from further liability thereon; and, if he or his vendor has already resided on his home section for three years, or when he or his vendor, or both together, shall have resided upon it for three years, the additional lands purchased may be patented at any time.” Article 5436, p. 3606, Sayles’ Ann. Statutes.

This statute has been construed to mean that the substitution is a sale which cures irregularities or invalidity of the previous sale. Goodwin v. Koonce, 130 S. W. 620; Johnson v. Bibb, 32 Tex. Civ. App. 471, 75 S. W. 71; Reinenger v. Pannell, 46 Tex. Civ. App. 137, 101 S. W. 816; Davis v. Yates, 133 S. W. 285.

The conveyance does not vest in the grantee any right or title to the land, in cases in which the occupancy has not been completed, such as would support an action to recover the same, but merely gives him the right to apply for the purchase of the land upon the conditions stated in the law. Hardman v. Crawford, 95 Tex. 199, 66 S. W. 206. Unless his application is accompanied with affidavit of settlement the same cannot be granted. Perry did not apply to be recognized as substitute purchaser, for the reason that he could not show compliance with the conditions prescribed by law. Coston and Martin did become substitute purchasers, and such purchases were never canceled, but notwithstanding that fact the commissioner issued patents to Perry for the lands described in the conveyance made him by A. B. Harper and wife. As the statute only permits the sale of a right to become substitute purchaser, the land was never sold to Perry by the state, and he acquired no title thereto, but it was1 sold to Coston, and aft-erwards to Martin. Such sales were not void, and Martin occupied the position of purchaser for more than a year after his purchase without any suit being brought by Perry for the purpose of asserting a prior right to purchase.

It is held by our Supreme Court that the act now known as articles 5458 and 5459, Revised Statutes of 1911, was not only a statute of limitation, but, in addition to fixing a time for suit, contains both a rule of substantive law and a rule of evidence which the courts must take notice of and be guided by in the decision of causes; that the award in a contest over school land constitutes the title of the purchaser, which may be produced in evidence without special pleading, and, when it is produced and shown to have stood for a year, this statute, of which the court must take notice, makes1 it conclusive evidence of a valid sale against every one but the state. Erp v. Tillman, 103 Tex. 574, 131 S. W. 1060. We believe this statute is applicable to the instant ease. The sale of the land to a substitute purchaser must be held to entitle such purchaser to the same rights under the law as if it had been an original purchase. Perry failed to sue within a year, and never even made application to become a substitute purchaser of the land. He could acquire no rights unless he did so, and the unauthorized act of the commissioner in patenting the lands to him cannot give him such a title as he can assert against Martin’s purchase, which, at the end of a year, gave him a good title as against others than the state. Such sale to Martin, taken with the certificate of occupancy issued by the commissioner, showed title in Martin to the land in controversy. The sixth assignment is therefore overruled.

The seventh and eighth assignments are without merit.

The judgment is affirmed.
      <§=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    RIO GRANDE FIRE INS. CO. et al. v. HERDER.
    (No. 5549.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 15, 1915.)
    1. Corporations <@=3297 — Powers op Directors.
    That at a meeting of shareholders a motion to instruct the directors to reimburse the shareholders who financed the investigation made of the corporation’s affairs was lost, the expenses referred to in the motion amounting to $800 or $900, does not preclude the board of directors from subsequently paying any legitimate items going to make up the entire amount.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 1274-1291; Dec. Dig. @=3297.]
    2. Corporations @=>214 — Directors — Dia-bility or.
    While stockholders who sued for the benefit of the corporation are entitled to reimbursement for expenses only where they succeed, that rule does not apply where a director is sought to be charged with funds disbursed by him to such stockholders under authority of the board of directors.
    [Ed. Note. — For other cases, see Corporations, Dec. Dig. @=>214.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Action by George Herder against the Rio Grande Fire Insurance Company, which counterclaimed. From a judgment for plaintiff denying defendant’s counterclaim, it appeals.
    Affirmed.
    Marcus W. Davis and Geo. M. Mayer, both of San Antonio, for appellant. Templeton, Brooks, Napier & Ogden, of San Antonio, for appellee.
   MOURSUND, J.

The Rio Grande Fire Insurance Company was dissolved, and two dividends had been declared for the benefit of its stockholders, aggregating 60 per cent, of the par value of the stock. Appellee held stock of the par value of $2,600, and sued to recover dividends to the extent of 60 per cent, of his stock. The defendants, the Rio Grande Fire Insurance Company and the directors who were sued as trustees, admitted that the dividends amounted to the sum sued for, namely, $1,560, but alleged that appellee was justly indebted to the company in the 'sum of $411.10, with interest at the rate of 6 per cent, per annum from January 10, 1910, by reason of the fact that appellee, as a member of the board of directors of the company, had illegally and without authority paid said sum out of the funds of the company. They tendered, the amount of liquidating dividends due him, less said sum of $411.10, with interest thereon. Appellee denied that he was indebted to defendants, and alleged that the company had paid him said sum of $411.10 to be distributed by him to various stockholders who had contributed said amount for the purpose of its being expended for the benefit of the company to contest the purchase by the company from its former president, C. W. "Walter, of certain property on Alamo Heights, and alleged, further, that all of said money except $99 had been expended in bringing and prosecuting said suit. Appellee alleged further that the money was paid to him under authority of the board of directors, and with the understanding that it would be paid out by him to the various stockholders, in proportion to the sum contributed by each, and that he had paid it out pursuant to such understanding, wherefore defendants were estopped to assert any claim to such money. Defendants replied, alleging that the board of directors had no authority to pay said sum, and that their action in paying it was unlawful; they denied that the money was expended for the benefit of the corporation, or that any benefit had ever been derived by the corporation from the expenditure thereof; they also denied that by any action of the company were they estop-ped to assert their claim to said money. The court rendered judgment in favor of appellee for the full amount sued for.

Appellants contend that the offset of $411.10 should have been allowed because the evidence shows that at a stockholders’ meeting the stockholders refused to allow and pay said sum, and for that reason the directors were without authority and power to allow and pay said sum of $411.10. The minutes of the stockholders’ meeting show that a motion to instruct the board of directors to reimburse these stockholders who financed the investigation made of the company’s affairs, during August and September, 1911, failed to carry. The expenses referred to in this motion amounted to $800 or $900, including, in addition to the items making the $411.10, certain expenditures by a committee with reference to an investigation of an election of a new board of trustees. The minutes of the board of directors show the following:

“Mr. George Herder presented a statement of the expenses of the stockholders who employed counsel to prevent the sale of the "Walker place to the Rio Grande Fire Insurance Company, and the board allowed thereon, the following items: Attorney’s fees, $250.00; $151.10; total $411.10, and instructed the secretary to issue draft to George Herder in payment of the same.”

The money was paid to appellee, and he distributed it among the stockholders who had contributed funds. The action of the stockholders in voting down the motion to pay the sum of $800 or $900 cannot be held to be a denial of the right of the directors to pay any legitimate items of expense going to make said entire amount. The contention made in the first assignment of error is therefore overruled.

The appellants failed to sustain their contention that the expenditures complained of were unauthorized by law. The evidence shows that the greater portion of the $411.10 was expended in the reimbursement of stockholders for the expenses of a suit, instituted for the benefit of the company to prevent the purchase by the directors from the then president of the corporation of his home for a large sum, and to recover money which it was alleged he had received and was not entitled to, while the remainder was paid for a stenographic transcript of the proceedings of a stockholders’ meeting, which was subsequently used for the benefit of the company in other litigation. It is true that stockholders are only entitled to reimbursement for reasonable expense incurred in prosecuting a suit for the benefit of the corporation if they succeed in such litigation. Cook on Corporations, §§ 748, 879. The evidence does not show how the suit terminated. But this is not a suit by stockholders to recover expenses of that character, but is a suit in which a director is sought to be charged with funds expended by the board of directors on the theory that such expenditures were not authorized by law. The burden of proof was upon appellants to establish that such expenditures were unlawful, and they failed to do so.

The judgment is therefore affirmed.
      <g=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. ATTAWAY.
    (No. 7436.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 27, 1915.
    Rehearing Denied Dec. 24, 1915.)
    1. Appeal and Ekboe <@=51011 — Scope op Review-Findings op Fact.
    The court on appeal is bound by the findings of the trial court upon questions of fact upon which the evidence is in conflict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3983-3989; Dec. Dig. <©=? 1011.]
    2. Railroads <@=>405 — Operation—Injuries to Stock — Liability.
    Rev. St. 1911, art. 6603, making railway companies liable for all stock killed by being struck by rolling stock of the company, does not limit liability of the company to injuries so caused, but the company is liable for injuries to stock due to any other form of negligence.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1393-1398; Dec. Dig. <©=5405.]
    3. Railroads <©=>413 — Operation — Cattle Guards — Injuries to Stock — “Inclosure.”
    Under Rev. St. 1911, art. 6596, requiring railroads to construct and maintain good and sufficient cattle guards at the point of entering every field or inclosure, and article 6600, making the companies liable to the person damaged for injuries due to failure to observe article 6596, it was defendant’s duty to maintain cattle guards at a lane between two parts of plaintiff’s land, which were separated by the right of way, a lane being an “inclosure” within the statute, which contemplates private inclosures, so that when defendant permitted sand to accumulate in the guards and conceal their points¡ so that plaintiff’s horses injured their hoofs in crossing over the guards, defendant was liable for the injuries.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1459-1472; Dec. Dig. <@==>413.
    For other definitions, see Words and Phrases, First and Second Series, Inclosure.]
    4. Railroabs <@=>421 — Operation—Injuries to Stock — Actions—Defenses—Contributory Negligence,
    It was not contributory negligence for plaintiff, knowing of the defective condition of cattle guards at a private lane, to turn his stock into the lane, but the railroad, by failing to repair the guards, assumed the risk of injuries due to their defective condition, since it could not, by its negligence, deprive the landowner of the ordinary use of his land.
    [Ed. Note. — For other cases, see Railroads, Cent. D’ §§ 1501-1508, 1510; Dec. Dig. <§=> 421.]
    Appeal from Wood County Court; R. E. Bozeman, Judge.
    Action by H. W. Attaway against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    R. B. Howell, of Winnsboro, for appellant. M. D. Carlock, of Winnsboro, for appellee.
   RASBURY, J.

Appellee sued appellant in justice court, precint No. 4, Wood county, according to the transcript “account damages to live stock $195.00.” The pleading of appellant by the same record was the “general, denial.” Upon trial before the justice of the peace judgment was for appellee for $150. In the time and manner provided by law appeal was taken to the county court of Wood county, where there was trial de novo before the court upon the same pleading, resulting again in judgment for appellee for $150, from which last judgment appeal has been prosecuted to this court.

The county judge, upon request of appellee, filed conclusions of fact, but inasmuch as appellant challenges the sufficiency of the evidence to sustain the court’s conclusions of fact, we will, in our own language, state the substance of the essential facts deducible from the evidence. Appellee lives on his farm, a short distance west of Neweome, a station on appellant’s railroad in Wood county. The railroad crosses his farm. His residence is south of the railroad. Opposite his residence and across the railroad is his pasture, which is under fence. The residence is connected with the pasture by a fenced passageway or lane which leads from the farmhouse across the railroad track to the pasture. Where the lane crosses the railroad there are cattle guards on each side. Appel-lee’s father, with the consent of appellant, built the lane, to be used as a private crossing for his stock from his residence into the pasture. Appellant put in the cattle guards about 10 years prior to the injury. When the guards were put in, nothing was said concerning their upkeep. Stock was turned into the lane at appellee’s residence through a gate there, and found their way thence across the railway into the pasture. Prior to instituting this suit appellee turned two mares into the lane, and when they reached the crossing they walked over and across the cattle guards onto the track and into a public road, which crosses the railway track at said point just outside the lane. There is no detailed discription of the guards in the record, but it does appear that the guards are made from a solid sheet of iron, presumably to fit in between the tracks and outside thereof, into which interstices are cut, and the cut part then raised to ah upright position, which results in a sharp upright spike about two inches high. When the mares crossed over the guards these spikes entered their feet, injuring them seriously, as a result of which one died and the other was disabled for two weeks. Due to the slope of the land where the guards were built, when rain fell the water would wash sand upon the guards, and at the time the mares were injured the guards, save a few spikes, were covered by such deposit and not visible to the eye. Appellee knew the condition of the guards before his mares were injured, but made no complaint thereof to the company. The evidence supports the amount of the verdict.

The foregoing facts are fairly deducible from the evidence adduced on behalf of ap-pellee, without reference to the court’s conclusions of fact, which appellant has assailed. It is also true that appellant introduced a number of witnesses who sharply contradicted appellee and his witness, and whose testimony showed that the water from rains did not wash sand upon the guards, and that at the time the mares were injured there was, as matter of fact, no sand thereon. In reference to such contradiction, however, it was the right and duty of the trial judge to reconcile or solve the conflict. This he has done, and we are bound by his conclusions in that respect. Accordingly we will consider the assignments of error from the standpoint of those facts which will support the judgment of the court.

The first proposition urged under the foregoing facts is, in effect, that a railway company is not liable for injuries sustained by live stock which stray upon its right of way from a private inclosure, except in eases where such stock is struck by the locomotives or cars of the railway company. This proposition is based upon article 6003, R. S. 1911, and its repeated construction by the appellate courts of the state. The effect of the article cited is to declare that railway companies shall be liable for all live stock killed or injured by coming in contact with tbe locomotives or cars of sucb railway companies. We do not understand, however, that tbe statute quoted excludes liability from any other form of negligence imposed by statute or rule of decision.

Liability against appellant in the instant ease is sought to be fixed by the provisions of article 6596, R. S. 1911, which require railway companies to place a good and sufficient cattle guard or stop at the point of entering every field or inclosure, and to keep same in repair, and article 6600, R. S. 1911, which provides that any railway company, neglecting to construct and kéep in repair such cattle guards, shall be liable to the party injured by such failure for all damages resulting therefrom. The lane constructed by appellee’s father was an inclosure within the meaning of article 6596, R. S. 1911, and not to be confounded with the provisions of article 6486, requiring gates and not cattle guards. S. A. & A. P. Ry. Co. v. Robinson, 17 Tex. Civ. App. 400, 43 S. W. 76. Hence it was the duty of appellant to construct and keep in repair, at the point where its line of railway crossed appellee’s lane, a good and sufficient cattle guard or stop, which is by article 6598, R. S. 1911, declared to be in effect one which will turn marauding stock. In such connection it has been held that the statute is intended, not only to prevent stock from depredating on adjacent fields, but to prevent as well their escape. Southwestern Tel. & Tel. Co. v. Krause, 92 S. W. 431. The evidence on the part of appellee, which was adopted by the trial court, discloses that the cattle guards maintained by appellant where its road passed through appellee’s inclosure was not in “good repair,” since sand had been permitted to wash and accumulate upon the guards so as to conceal the guards, save a few of the spikes, by reason of which appellee’s mares were induced to cross over same. A case quite similar in its facts to those in the instant case was before this court. Saine v. M., K. & T. Ry. Co. of Texas, 85 S. W. 487. In that case it appeared that the railway had permitted grass to grow through and around the guard, so as to hide the spikes and induce live stock to go upon the same, whereby they were injured in the same manner as were appellee’s mares. In the lower court the railway company’s liability was made to turn upon whether the guard at the time of the injury to the stock was in good condition, the court refusing to submit the facts pleaded as a basis of liability. In reversing the case this court said:

“The cattle guard itself may have been in good condition, and defendant in error may have strictly performed its statutory duty in the selection of the guard used, and in the manner of constructing and placing it upon its roadbed, yet guilty of such negligence in respect to permitting grass to grow up through and around said guard, whereby plaintiff in error’s horses were induced to cross over the same, as rendered it liable for the injury thereby inflicted upon them.”

In the case from which we have just quoted, the live stock entered over the defective guard from the commons into a private field, while in the instant case they entered from a private inclosure over a defective guard upon the commons. But we fail to see that such fact affects the rule, as is contended by appellant. Every inclosure through which the road passes must be protected by cattle guards, which of course include private in-elosures. While the statute may conceivably have contemplated public inelosures, it is beyond question that it did contemplate private inclosures. Such a holding, in effect, under facts nearly identical with those in the instant case, will be found in Stephenville N. & S. T. Ry. Co. v. Schrank, 175 S. W. 471. See, also, T. & P. Ry. Co. v. Sproles, 47 Tex. Civ. App. 294, 105 S. W. 521. There is a broad distinction to be drawn between the case at bar and the many cases which have been passed upon by the appellate courts and cited by appellant, holding, in effect, that a railway company is not liable, under the facts in those cases, for injuries received by live stock while upon its tracks not resulting from contract with its locomotives or cars. Railway companies are not required to so construct their railways as to prevent injury to stock which may stray thereon and negligence vel non is always an issue in such cases, save when it appears that the railway company ran its locomotives or cars upon such live stock; but an entirely different rule pertains when the railway company is by statute, charged with the specific duty of maintaining a defined condition at inclosures, and the failure to maintain such condition is the proximate cause of the injury as in the ease at bar. We accordingly feel constrained to overrule appellant’s first assignment of error on the ground that evidence sustains the conclusion of the trial judge that the appellant had failed to keep its guards at the point where its tracks crossed appellee’s in- ' closure in repair.

It is next urged that the court erred in rendering judgment for appellee because appellee, knowing of the defective condition of the guard, turned his stock into the inclosure, and thereby contributed to their injury. We conclude that such knowledge by appellee did not constitute contributory negligence on his part. In G., C. & S. F. Ry. Co. v. Cash, 8 Tex. Civ. App. 569, 28 S. W. 387, it is said:

“While the authorities seem somewhat conflicting upon this question, we believe the better reason is with those cases which hold that the owner of land adjacent to a railroad cannot thus be deprived of the ordinary use of his property, but, rather, that the railway company in such cases assumes the risk of the accident as a consequence of its neglect to properly discharge a statutory duty; that it undertakes at its peril to see that no harm comes to stock from running its trains under such conditions.”

In St. Louis S. W. Ry. Co. of Tex. v. Blackwell, 40 S. W. 860, after citing Clark v. Dyer, 81 Tex. 340, 16 S. W. 1063, in support of the rule, it is said:

“The statute [article 6599] authorizes the owner, in case the railway company fails to construct and keep in repair needed cattle guards, to construct them and keep them in repair at the expense of the company; but the company cannot shield itself from liability upon the ground that the owner did not avail himself of the privilege of doing the work himself. There are obvious reasons for this.”

One of the obvious reasons is stated to be that:

“The owner in lawful possession of his land is entitled to use it, in any lawful manner he may desire, for any purpose for which it may be adapted. The law does not require that the owner shall preserve and guard his premises from the effects of injuries caused by the wrongful acts of another before he is justified in the use thereof. A different rule would virtually deprive the owner of the beneficial rights incident to the enjoyment of his estate.”

Por the reasons stated, we conclude that the evidence did not raise the issue of contributory negligence.

The judgment is affirmed.
      ¡gsoFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <gEs>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes