author: DUNKLIN, J.

text:
    MOSELEY et al. v. BRADFORD et al.
    (No. 8458.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 11, 1916.
    Rehearing Denied Dec. 16, 1916.)
    1. Highways <&wkey;20 — Establishment bY Statutory Proceedings — Public Necessity.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 6860, 6861, 6871, 6883, 6889, 6894, relating to the establishment of public roads by the commissioners’ court, that court cannot lay out highways unless a public necessity therefor exists.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. § 26; Dec. Dig. &wkey;o20.]
    2. Highways <&wkey;64 — Establishment by Statutory Proceedings — Restraining Opening oe Road.
    While the commissioners’ court has wide discretion in opening a public road, an abuse thereof may be enjoined, especially as Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6882, confines the issues upon appeal to the amount of damages, leaving the only remedy that of injunction.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 165, 334; Dec. Dig. &wkey;>64.]
    3. Eminent Domain &wkey;>198(l) — Evidence— Condemnation Recitals.
    Recitals as to necessity in condemnation proceedings to establish a public road do not controvert positive and uncontroverted testimony in a suit to enjoin establishment, because there was no public necessity for the road.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. § 531; Dec. Dig. &wkey;> 198(1).]
    4. Eminent Domain <&wkey;13 — Extent of Power — Taking Property for Private Benefit.
    Taking private property for a highway for the benefit of an individual by a municipal body is a legal fraud upon the owner’s rights, although there was no fraudulent intent in doing so.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 51-53; Dec. Dig. <&wkey;> 13.]
    5. Highways <&wkey;55 — Establishment by Statutory Proceedings — Waiver of Defects.
    • Plaintiffs did not waive their right to enjoin the opening of a public road by presenting to the condemnation commissioners a claim for damages which reserved the right to contest such opening, especially where waiver was not pleaded,
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 173-175; Dec. Dig. &wkey;55.]
    6. Highways <&wkey;55 — Establishment by Statutory Proceedings — Pleading — Waiver of Defects.
    Waiver of the right to contest the opening of a road upon the ground of lack of public ne-, cessity is not available, unless pleaded.
    [Ed. Note. — For other cases, see Highways, Cent. Dig. §§ 173-175; Dec. Dig. &wkey;55.]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Suit by Margaret C. Moseley and others against J. H. Bradford and others. From an order dissolving a temporary injunction, the plaintiffs appeal.
    Reversed and rendered.
    W. H. Penix, of Mineral Wells, Hood & Shadle, of Weatherford, and D. M. Alexander, of Ft. Worth, for appellants. J. T. Ran-spot and W. F. Smith, both of Palo Pinto, for appellees.
   DUNKLIN, J.

J. H. Bradford owns a survey of 160 acres of land situated in Palo Pinto county, which is wholly within and surrounded by a ranch, known as the Moseley ranch, of 3,000 acres. Mrs. Margaret C. Moseley owns a life estate in the land constituting the ranch, and the children of Mrs. Moseley and her husband, H. L. Moseley, own the fee-simple title in said ranch, subject to said life estate. On June 16, 1915, Mrs. Moseley and her husband filed this suit in the district court of Palo Pinto county against J. H. Bradford, the county judge, and other members of the commissioners’ court, and the road overseer, to enjoin the opening of a public road of the second class, which had theretofore been established by said commissioners’ court, extending from the home of said J. H. Bradford to a point on the Up-an public road, which had theretofore been ordered opened. At the same time they applied for and obtained a temporary writ of injunction, restraining any further action on the part of the defendant looking to the opening of the road. On June 29, 1915, the defendants filed a motion to dissolve the temporary writ, which was heard and granted on the 9th of July following. The plaintiffs gave notice of appeal from said order to this court, but they failed to take any further steps to prosecute said appeal. After such failure to prosecute the appeal, the commissioners’ court ordered the road opened in compliance with their former orders, and the road was thereafter opened by the road overseer in compliance with the terms of said order. Thereafter, on October 6th, plaintiffs filed in the district court their first amended original petition, alleging that the action of the commissioners’ court in opening the road was void, and asking that said court be enjoined from opening and maintaining the same, and that the fences erected to fence off the road from the balance of the Moseley ranch be removed. The case was tried.without a jury, and the trial judge filed findings of fact and conclusions of law, which are as follows:

“Findings of Fact
“The Allen Williams survey of land is owned by Mrs. Margaret O. Moseley, one of the plaintiffs herein, who has a life estate in said survey with the remainder in her children.
“(2) The J. W. F. Stone survey is owned by J. H. Bradford and is entirely surrounded by said Allen Williams survey.
“(3) J. H. Bradford has no road or outlet from his place except across the Allen Williams survey.
“(4) For years J. H. Bradford has had a gated road leading from his place to the old Lipan road, thence to his post office and trading point at Brazos, Tex. This road has been moved by plaintiffs herein at will, and the location of same has never been certain or definite since the defendant J. H. Bradford has owned and occupied the said Stone survey.
“(5) On the 14th day of April, 1915, J. H. Bradford and others posted three notices, as required by law, stating that a petition would be presented to the commissioners’ court of Palo Pinto county at its May term, 1915, asking for the opening and establishment of the road in controversy.
“(6) On the 9th day of May, 1915, J. H. Bradford filed with the clerk of the commissioners’ court a petition in writing signed by himself and 44 others, freeholders of road precinct No. 14, of Palo Pinto county; that the said petition stated, among other things, that it was necessary for the convenience of the petitioners and the public generally that the road therein asked for be opened, same being the road in controversy.
“(7) On the 13th day of May, 1915, the commissioners’ court of Palo Pinto county acted upon said petition, and found that a necessity existed for the opening of the said road, granted said petition, and appointed a jury of view to lay out the said road.
“(8) On the 25th day of May, 1915, an order for the jury of view to view out the said road and assess the damages incident thereto was duly issued by J. W. Brock, county clerk of Palo Pinto county, Tex., directed to J. E. Riggs, E. J. Kahlbau, Tom Harrison, L. M. Blucher, J. M. Watson, jury of view theretofore appointed by the said commissioners’ court of Palo Pinto county, and that said order for the jury of view was on the 27th day of May, 1915, served upon each member of the said jury of view by W. <3. Abernathy, sheriff of Palo Pinto county, Tex.
“(9) Thereafter said jury of view took the oath, as required by law, and thereafter gave notice to Mrs. Margaret C. Moseley and H. L. Moseley, her husband, of the time and place at which said jury of view would meet to lay out and survey said road and to assess damages thereto; said notice was served upon the said Mrs. Margaret 0. Moseley and H. L. Moseley in Parker county on the 1st day of June, 1915, by Geo. Gore, sheriff of Parker county, Tex.; said notice was given for more than five days before the time set for the meeting of the said jury of view.
“(10) On the 10th day of June, 1915, the said jury of view met at the time and place mentioned in their notice to the plaintiffs and proceeded to lay out said road in compliance with the order of the commissioners’ court and to assess damages to land taken from Mrs. Margaret O. Moseley for said road at the sum of §50 and other damages incident to the opening of the same at the sum of §10; and on the 14th day of June, 1915, filed with the clerk of the commissioners’ court a report of their action.'
“(11) On the 15th day of June, 1915, the commissioners of Palo Pinto county acted upon said report of the said jury of view, and ordered the said road opened and established as a road of the second class, 30 feet wide, and further ordered that the sum of $100 be deposited with the county treasurer of Palo Pinto county to the order of Mrs. Margaret O. Moseley as compensation for land taken, and ordered that J. H. Wharton, overseer of road precinct No. 14, open and fence said road.
“(12) When the said jury of view met to lay out the said road and to assess damages thereto the plaintiffs, H. L. Moseley and Mrs. Margaret O. Moseley, filed with the said jury of view a claim for damages for land taken in the sum of $100, and further incidental damages claimed in the sum of $500.
“(13) Said road is located as follows: Beginning at an iron stake 200 feet of the northwest corner of the J. W. E. Stone survey; thence in a northerly direction across the Allen Williams survey 1,700 feet to a stake at the crossing of a branch; thence in a westerly direction 436% feet to a stake in the center- of a gate near the residence of T. B. Roquemore and intersecting the old Lipan road at the said point; that the said road is now open and used by the public.
“Conclusions of Law.
“Upon the whole evidence and the foregoing findings of facts, I conclude as a matter of law:
“1. The commissioners’ court of Palo Pinto county had the legal right to order the said road opened, and that the said court acted within its legal authority in opening the same.
“2. The petition of J. H. Bradford was in due and legal form; the same was signed by the requisite number of freeholders, and due notice of the presentation of the same had been given.
“3. All orders passed by the commissioners’ court of Palo Pinto county in reference to the opening of the said road were in due and legal form and made in conformity with law.
“4. The jury of view were legally sworn and qualified, the notices given to the plaintiffs H. L. Moseley and Mrs. Margaret C. Moseley were in legal form, and the same were given for the length of time required by law.
“5. The plaintiffs, in appearing before the said jury of view and presenting a claim for damages, waived any and all irregularities, if any had existed, in the proceedings of the court up to the said time.
“6. The commissioners’ court of Palo Pinto county had jurisdiction and full power to open said road and to make any and all orders necessary to be made in the opening of the same.
“7. The district court is without jurisdiction to inquire into any of the matters in controversy in this suit further than to ascertain that the commissioners’ court did not abuse the right of discretion vested in it concerning the opening of public roads.
“8. The commissioners’ court had jurisdiction of the entire subject-matter involved in this suit, and the said court has not abused its discretion, and therefore the plaintiffs are not entitled to the restraining order prayed for in their petition.”

Plaintiffs alleged in their petition that the road was established for the sole benefit of J. H. Bradford, and not for the benefit of the public at large, and that therefore the action of the commissioners’ court in establishing the road was void because it was an abuse of the discretion vested in said court by the statutes in the matter of laying out and opening public roads. And the contention pressed most strongly upon this appeal is that the truth of those allegations of fact was established by uncontroverted proof.

It is hardly necessary to say that the power of the commissioners’ court to lay out public roads did not exist except in cases of public necessity therefor, and that it did not have authority to lay out such roads for the sole purpose of benefiting Bradford only. See Vernon’s Sayles’ Texas Civil Statutes, arts. 6860, 6861, 6871, 6883, 6889, 6894; 15 Cyc. pp. 578, 579, 581 to 585; 10 R. C. L. §§ 22, 23, 28; 37 Cyc. 45 to 50. In Re Tuthill, 163 N. Y. 133, 57 N. E. 303, 49 L. R. A. 781, 79 Am. St. Rep. 574, the following language was used:

“Whether that is a public use, for which private property is authorized to be taken, will depend upon the object aimed at and whether the plan has such an obvious, or recognized, character of public utility, as to justify the exercise of the right, of eminent domain, or of the power of taxation, in its favor.”

It is also true that the fact that some parties are more benefited than others by the use of the highway seems no objection thereto if the public interest and convenience are thereby subserved. Ross v. Davis, 97 Ind. 79; In re Burns, 155 N. Y. 23, 49 N. E. 246; G., H. & S. A. Ry. v. Baudat, 18 Tex. Civ. App. 595, 45 S. W. 939. In 37 Cyc. 47, it was said:

“It is not requisite, however, in order to justify the establishment of a highway, that it should both begin and end at pre-existing highways, or other public places, provided it is a public necessity, and if laid out will be a public utility and convenience. It is sufficient if one terminus be at an existing highway or other public place. Accordingly, a cul-de-sac may be established as a highway if public necessity, utility, or convenience requires. Under such circumstances the road when laid out need not be a thoroughfare.”

To the same effect is Decker v. Menard County, 25 S. W. 727.

It is well settled that, while the commissioners’ court in opening a public road has a wide discretion in determining whether or not it is a public necessity, it may be enjoined from so doing upon a showing of an abuse of that discretion. Bourgeois v. Mills, 60 Tex. 76.

The statement of facts filed in the case shows that the documents referred to in the court’s findings of fact were introduced in evidence such documents showing the proceedings taken for opening the road and consisting of the petition for the same, appointment of the jury of view, order approving their report, etc. Those instruments are not copied in the statement of facts, but they are attached to the plaintiffs’ petition as exhibits, and presumably they are the ones considered by the court and referred to in his findings of fact.

Aside from those documents the only evidence introduced was the testimony of H. L. Moseley, one of the plaintiffs in the suit. He testified as follows:

“My coplaintiff Mrs. Margaret 0. Moseley is my wife, and owns a life estate in two tracts of land, known as the Allen Williams survey, consisting of about 3,000 acres, and which property is known as the Moseley ranch, the title to said land being in our children named in the petition herein; that the defendant J. H. Bradford owns and occupies the J. W. Stone survey of 160 acres, which lies wholly within the inclosure of said Moseley ranch; that the road in controversy, the opening of which is sought to be enjoined in this suit, is a short road about one-third of a mile long, and extends from the yard of the residence of the defendant J. H. Bradford, on said J. W. E. Stone survey out through the said Moseley ranch to a public road, which runs along the west side of said Moseley ranch and is commonly called the Lipan road; the defendant J. H. Bradford has lived on said Stone survey, inside of the Moseley ranch, for a number of years, and always had free and easy access to his said land and home by a road, or several roads out through said ranch to said Lipan road, through a gate, or gates, in the outside fence of the said Moseley ranch, said road and roads being clear of any obstruction of any sort, except one gate; that the said J. H. Bradford had lived on said Stone survey for a number of years and used the roadway furnished him by the plaintiffs through the said Moseley ranch; that the road so furnished the defendant J. H. Bradford was the shortest and nearest way from the residence of the said Bradford to his post office, schoolhouse, gin, etc.
“That the petition for said road was signed by a number of citizens, who did not live near the said road, and who signed the petition for said road at the request of the defendant J. H. Bradford; that said road, as opened by the commissioners’ court of Palo Pinto county, Tex., who are the other defendants herein, was opened as a second class road through the land in cultivation on plaintiffs’ ranch and through growing crops on said land, and caused the plaintiffs very great inconvenience, as it cut their field in two with a lane and compelled the plaintiffs to open two gates in passing from one part of their field to the other part; that there was no necessity in his opinion for said road, as there was already a good road with a gate on it from the defendant Bradford’s house out through plaintiff’s land, which was easily accessible both for the plaintiffs and the general public.
“That when a matter of opening said road came up for consideration before the commissioners’ court of Palo Pinto county, he went before said commissioners’ court for the purpose of contesting the opening of said road, but that said commissioners’ court declined to permit plaintiffs to produce any evidence as to the necessity of opening said road, or his damages sustained thereby, and declined to hear any evidence from the plaintiffs as to the opening of said road and the public necessity therefor.
“That the defendant J. H. Bradford told him that the reason that he wanted said road opened was because he thought it would add to the value of his place to have an open road from his front gate out to the public road; that he wanted to sell his place, and thought he could sell it easier with an opened lane than with a third-class road, and that he intended to get the road if the law would give it to him. ‘I have been notified that Palo Pinto county has deposited with the county treasurer $100, payable to the order of my wife, Mrs. Margaret O. Moseley, in payment for damages and land taken. Money is no object with us; we do not want an open road through our land.’
“That there had been no trouble about the road in times past between plaintiffs and the defendant J. H. Bradford; that the said J. H. Bradford never made any complaint of any sort as to the road furnished him by plaintiffs as an outlet through said Moseley ranch over said Williams survey.
“That said road, as opened by the court, was solely for the benefit of the defendant J. H. Bradford, and only extended from Bradford’s front gate out to said Lipan road, and is not used by; the public for any purpose except to visit said Bradford.
“That the public in times past easily reached said Bradford’s land by a road with a gate in it; that the effect of opening said road was to make plaintiffs open two gates instead of defendant Bradford having to open one, and caused plaintiffs very great inconvenience and trouble.”

In McIntire v. Lucker, 77 Tex. 259, 13 S. W. 1027, it was held that a commissioners’ court, at the instance of a property owner whose land was taken for a public road, could be enjoined from opening the road upon a showing that in the condemnation proceedings the statutory requirements for first giving notice to the owner before such condemnation was made were not complied with. After citing the statute requiring such notice to be given, the court said:

“The service of this notice in the manner required by this statute is indispensable to the exercise of jurisdiction by the commissioners’ court. It is a jurisdictional fact which must be affirmatively shown to sustain the jurisdiction of the commissioners’ court in making, an order establishing and directing that a public road be opened on the land of a citizen. Without proper service of such notice the action of the jury of freeholders and the order of the commissioners’ court are nullities.”

To the same effect are Vogt v. Bexar Co., 5 Tex. Civ. App. 272, 23 S. W. 1044; Evans v. Santana Live Stock & Land Co., 81 Tex. 622, 17 S. W. 232; Morgan v. Oliver, 98 Tex. 218, 82 S. W. 1028, 4 Ann Cas. 900; Crawford v. Frio County, 153 S. W. 388; Parker v. F. W. & D. C. Ry. Co., 84 Tex. 333, 19 S. W. 518. The case last cited was a suit by Parker against the railway company in trespass to try title to land which had theretofore been condemned for the use of the railway in a condemnation proceeding instituted in the county court, and the decree of condemnation was relied on toy the railway company as a defense .to the action to the extent of the right of way awarded. In the opinion rendered in that case the Supreme Court used the following language:

“Many objections were urged to the admission in evidence of the petition seeking condemnation of right of way, to the report of the commissioners, and to the decree of condemnation; but it is not necessary to notice more than two of them. It was urged that the decree was inadmissible, in the absence of evidence that such notice had been given to owners as the law prescribes, and we are of opinion that this objection should have been sustained. The proceeding to condemn land for public use is special in its character, and its validity must depend upon a compliance with the law authorizing it. Nothing is to be presumed in favor, of the power of such a special tribunal, and it is incumbent on one seeking to show right under its decree to show that the court had acquired jurisdiction to render it. Notice to the owner of the land sought to be condemned is necessary to jurisdiction, and this cannot be presumed from declarations contained in the report of the commissioners, nor from recitals in the decree of condemnation, but must be proved” (citing a number of authorities).

In 4 McQuillin, Municipal Corporations, § 2110, it was said:.

“The prevailing rule is that public improvement proceedings and the recital of record relative thereto are usually conclusive as against collateral attack. But defects in such proceedings which go to the jurisdiction of municipal authorities may be attacked collaterally.”

And in Welton v. Dickson, 38 Neb. 767, 57 N. W. 559, 22 L. R. A. 496, 41 Am. St. Rep. 771, it was held that an injunction will lie to restrain the taking of property for the benefit of an individual, and not for the benefit of the public.

It is also to be noted that by article 6882 of our statutes, the right of the owner to appeal from the decision of the commissioners? court in condemning his property for a public road is limited to a complaint that the damages allowed are not adequate, thus leaving the only remedy open to him for resisting the unauthorized taking of his property by the commissioners’ court to a suit for injunctive relief in the district court, which was followed in the present suit.

The existence of a public necessity for a road being prerequisite to the authority of the commissioners’ court to lay out and 'establish a public road is also a jurisdictional fact, and what is said with reference to the necessity of proof of another jurisdictional fact, to wit, the service of notice upon the owner of land, would apply here also.

In those cases the burden of proving notice was placed upon the defendant. Even though it should be said that in the present case the plaintiff assumed the burden of proving that there was no public necessity for opening and establishing the road in controversy, he has discharged that burden by undisputed proof, which made out a prima facie case and also a prima facie showing ■that in establishing the road the commissioners’ court were moved by a desire to confer a benefit upon Bradford only, and not by a purpose to benefit the public. As noted already, the testimony of plaintiff! H. L. Moseley was not controverted at all. The defendants failed to introduce the commissioners, or Bradford, or any one else; and, as settled by the authorities noted, the recitals in the condemnation proceedings could not be considered tas any evidence controverting Moseley's testimony. And in this connection it is to be noted, further, that no excuse is shown for making the proposed road a second class road, which could not be closed by gates, rather than a third class road which could have been so closed under article 6899 of the statutes, and which apparently would have furnished Bradford, the same facilities of access to his land with the exception of the necessity of opening gates.

The action of a municipal body in taking private property for the benefit of an individual only, under the guise of a benefit to the public, is held by the authorities to be a legal fraud upon the rights of the owner of the property taken, and upon that theory may be impeached and set aside, even though the officers who take it had no fraudulent intent in same. Kansas City v. Hyde, 196 Mo. 498, 96 S. W. 201, 78 L. R. A. (N. S.) 639, 113 Am. St. Rep. 766.

In the case of Huggins v. Hurt, 23 Tex. Civ. App. 404, 56 S. W. 944, the owner of land sought to enjoin the commissioners’ court from opening a public road across the land. The chief complaint was the insufficiency of damages awarded for the land taken, and the contention that of the persons who signed the petition upon which the road was opened, not exceeding five were freeholders residing in the precinct through which the road was opened, while the statutes required that such a petition should be signed by eight freeholders. In that case this court affirmed the judgment of) the trial court, denying the prayer of complainant for an injunction restraining the commissioners- from opening the road. That ruling was based upon the following grounds: First. That the right of appeal from the award of damages given by article 4693 (now 6882) of -the Statutes was the only remedy for relief against an allowance of damages in an adequate amount. Second. That a petition to open/ a public road signed by freeholders was not a prerequisite to the authority of the commissioners to establish the road, but that they had that power, upon their own initiative, under the provisions of article 4671 (now 6860). Third. That the decision of the commissioners upon the qualifications of the petitioners was conclusive. And in connection with the latter holding the following was said:

“The inference therefrom is that the Legislature intended that the action of the commissioners’ court as to the necessity of the road, its proper location, the form of the petition, the qualification of its signers, and all other issues save that relating to the damages, should be conclusive.”

To a like effect are Howe v. Rose, 35 Tex. Civ. App. 328, 80 S. W. 1019; Allen v. Parker County, 23 Tex. Civ. App. 536, 57 S. W. 703. But no contention was made in any of those cases that there was no public necessity for opening -the road nor that the commissioners’ court had abused its discretion in ordering it opened nor in any other respect. In, the absence of such an attack, what was said would be correct. The language quoted had reference alone to that condition of the record as is shown by the opinion of the same court in Allen v. Parker County, supra, wherein it was held that the action of the commissioners’ court in establishing a public road will not be enjoined for mere irregularities in the proceedings, where such irregularities are not fatal to its jurisdiction to do so. None of those decisions is in conflict with our conclusions in the present suit.

Neither are plaintiffs precluded from a recovery herein upon the theory that, by appearing before the jury of view and presenting their claim for damages, they thereby waived their right to complain that the commissioners’ court abused its discretion, and in so doing acted beyond the scope of its authority to open the road. True, the trial court held that by such acts “they waived any and all irregularities, if any had existed, in the proceedings of the court up to the said time.” But the ground of objection that the court acted without lawful authority was not a mere irregularity in the proceeding, but went to the authority of -the court to open the road at all. Furthermore, it appears that the claim for damages which was presented -to the jury of view by the plaintiffs was in writing, and was made upon the following condition:

“Subject to our intention to contest in court the right of the commissioners’ court of Palo Pinto county to open the proposed road through the Moseley ranch from the Jack Bradford place to the Roquemore place, and under protest we file with you the following written claim for damages in the event said road is ever opened."

Then follows the claim for damages referred to in the court’s findings. Further still there was no plea of waiver filed by the defendants, based upon the fact that plaintiffs presented said claim, and it is well settled that, in the absence of a plea of waiver, the waiver cannot be given effect, even though it be proven without objection. Murchison v. Implement Co., 37 S. W. 605; Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 979; Moody v. Rowland, 100 Tex. 363, 99 S. W. 1112.

From the foregoing conclusions, it follows that the judgment of the trial court must be reversed, and judgment here rendered, granting plaintiffs the injunctive relief prayed for in their petition, and requiring the removal of the fences erected to fence off the road from the balance of plaintiffs’ land, without the discussion of other assignments appearing in appellants’ brief, the determination of which becomes unnecessary.

Reversed and rendered.
      i&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    CALLAN et al. v. WALTERS et al.
    (No. 5700.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 13, 1916.)
    1. Easements <$&wkey;l — Definition.
    An “easement” is the right which one person has to use the land of another for a specified purpose.
    •[Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 1, 2, 5-7; Dec. Dig. <S&wkey;l.
    For other definitions, see Words and Phrases, First and Second Series, Easement.]
    2. Easements <&wkey;12(2) —
    Grant—Writing.
    An easement may be created by a grant, in which case it must be done with the same formality as is necessary for the conveyance of a fee.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 35-38; Dec. Dig. &wkey;12(2).]
    3. Easements <&wkey;17(l) — Creation—Implied Grant.
    Where the owner of an improved lot with an entrance by a wooden stairway leading from the sidewalk on the east side of the building conveyed lots east of the building, by deed in the usual form making the east wall of the original building the west line of the lots sold, without reserving any right of way for a stairway on the lot sold, and, after the grantee had erected a two-story building with a stairway at its southwest corner affording entrance to the original building, conveyed such building and lot without reference to the stairway, the grantee took no right to its use.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 45; Dec. Dig. <&wkey;17(l).]
    4.Easements <&wkey;8(l) — Property Subject-Parties.
    The use of a wooden stairway outside of a building did not create an easement in the owner’s adjoining lot; for no man can have an easement on his own property.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 23, 27-33; Dec. Dig. &wkey;S(l).]
    5.Frauds, Statute oe &wkey;>60(l) — Interest in Realty — Easement.
    An oral agreement that the owner of lots should have an easement of way to his adjoining building in consideration of the use of its wall by the grantee, even if the use of the wall might be considered in payment of the purchase price, was within the statute of frauds.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 83, 94; Dec. Dig. &wkey;> 60(1).]
    6. Easement's &wkey;>8(4) — Bona Fide Purchaser — Possession—Easement.
    The use of a way over the land of another when the owner is also using it is not such adverse possession as will serve as notice of a claim of right; as it is not inconsistent with a license from the owner.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 27-33; Dec. Dig. <&wkey;>8(4).]
    7. Easements <&wkey;8(l) — Way—Notice.
    Where the owner of a building with an outside stairway conveyed the adjoining lot to a bank of which he was the president and principal stockholder, there was nothing in the bank’s use of the wall as a partition wall to cause inquiry as to what the consideration therefor was, so as to lead to the discovery that it was the right to use the stairway through the bank to the other building.
    [Ed. Note. — For other cases, see Easements. Cent. Dig. §§ 23, 27-33; Dec. Dig. &wkey;8(l).]
    8. Easements e&wkey;7(2) — Prescription—Time.
    To acquire an easement of way by prescription, the limitation must have continued for a period of ten years.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 17, 27, 33; Dec. Dig. &wkey;7(2).]
    9. Adverse Possession <&wkey;58, 85(3) — Degree op Proof — Presumption of Grant.
    As prescription is founded upon the supposition of a grant, the use or possession on which it is founded must be adverse or of a nature to indicate that it is claimed as a right, and not by permission or by any compact short of a grant, and evidence of such adverse possession must be clear and positive.
    [Ed. Note. — For other cases, see Adverse Possession, Cent Dig. §§ 279-281, 503, 688-690; Dec. Dig. &wkey;>58, 85(3).]
    10. Easements &wkey;>18(2) — Way of Necessity —Creation.
    An easement of way by necessity arises where the owner of land sells a part thereof, and it is necessary to pass over the land sold in order to reach that which 'he has retained, and will not arise as a matter of convenience, but only in case of an absolute necessity without which the party claiming it would be totally deprived of the use of his land.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 51; Dec. Dig. &wkey;»18(2).]
    11. Easements &wkey;>18(3) — Way of Necessity.
    Where the owner of a building could have obtained access to the upper story by an inside stairway, which, though it might lessen, would not destroy the value of the frontage, and where the building would be benefited from closing an opening in the side wall which had formerly afforded entrance for an outside stairway, the use of a stairway in a building on the adjoining lot built to the wall was not necessary to the use of the upper story.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. § 53; Dec. Dig. <&wkey;18(3).l
    12. Easements &wkey;>36(l) — Prescription—Way —Presumption and Burden of Proof.
    The rule that the burden of proof rests upon one asserting a right of way over another’s land by prescription to establish the negative fact that the owners of the servient estate were free from legal disability during the prescription period applies only where prescription is claimed against those who are not parties to the suit; and no more proof is required as against a defendant in a suit to establish an easement by prescription than to establish title by limitation in a suit for trespass to try title.
    [Ed. Note. — For other cases, see Easements, Cent. Dig. §§ 77, 78, 88, 89; Dec. Dig. <&wkey;> 36(1).]
    13. Easements <&wkey;35 — Exceptions — Plead-' ING.
    If there are exceptions taking the case of a prescriptive easement of way out of the statute, they must be pleaded.
    [Ed. Note. — For other cases, see Easements-Dec. Dig. <&wkey;>35.]
    Appeal from District Court, San Saba County; N. T. Stubbs, Judge.
    Suit for injunction by Mrs. Maud Callan and others against G. A. Walters and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Rector & Reetor, of San Saba, for appellants. Walters & Baker, of San Saba, for appellees.
   Findings of Fact.

JENKINS, J.

In February, 1905, and prior thereto, W. K. Ray was the owner of two lots on the north side of the public square in the town of San Saba, each being 30 feet front. Upon the west lot Ray had erected a two-story stone building, the entrance to which was by a wooden stairway, leading from the sidewalk on the east side of said building. The east lot at that time was vacant. At the date above mentioned Ray sold the east lot to the First National Bank of San Saba. Ray was the president and principal stockholder of said bank. He entered into an oral agreement with the bank that it could erect a two-story house upon the vacant lot, and tie the same onto the east wall of the stone building, and that the bank was to build a stairway at the place occupied by the wooden stairway, and that he was to have the right to use the same as an entrance to the stone building. The calls in the deed executed by Ray to the bank are as follows:

“Parts of lots 8 and 9 in block No. 12 of the old town division of San Saba, more particularly described as follows: Beginning at a stake in the south boundary line of said block No. 12, at the S. E. corner of the stone storehouse owned by said Ray on said block No. 12 for the S. W. corner of this subdivision; thence north with the east wall of said building to its N. E. corner and continuing north with the line of said east wall the full distance of 100 feet from said beginning corner to an iron pin set for N. W. corner of this subdivision; thence east parallel with the south boundary line of block No. 12 30 feet to an iron pin set for N. E. corner of this subdivision; thence south parallel with the west lirfe of this subdivision 100 feet to an iron pin set on south boundary line of said block No. 12 for S. E. corner this subdivision; thence west with .south boundary line of said block No. 12 30 feet to the place of beginning, being 30 feet front on the public square”— with the usual habendum clause and covenants of warranty.

It will thus be seen that this deed was in the usual form, making the east wall of the stone house the west line of the lot sold, and not reserving any right of way for a stairway in the lot sold. Thereafter the bank erected a two-story brick house on its lot, with a stairway at its southwest corner, landing in a hall, by means of which entrance through the door as it formerly existed in the east wall of the stone building was made to said building. On September 28, 1906, Ray conveyed the lot upon which was situated the stone house to E. T. Neal, properly describing the same by metes and bounds, with the usual habendum clause and covenants of warranty. No reference was made in this deed to the right to use the stairway in the bank building. On December 13, 1906, the bank, for a valuable consideration, conveyed the east lot to G. A. Walters, the description in said deed being the same as in the deed to the bank.

On November 28, 1913, E. T. Neal conveyed the west lot to Mrs. Maud Neal, now Callan, the description in said deed being the same as in the deed to him. All of these deeds were promptly filed for record in San Saba county. The tenants of W. K. Ray and of E. T. Neal and of Mrs. Maud Callan used the stairway in the bank building as a means of ingress and egress to the stone building until shortly before this suit was filed, November 4, 1915, at which time the appellee herein closed up the door in said east wall with solid masonry. It should have been stated that prior to bringing this suit G. A. Walters sold an undivided half interest in the bank lot to the other appellee herein, J..H. Baker. Neither Walters nor Baker, at the time of their purchase, had any actual notice of the oral agreement between Ray and the bank with reference to the use of said stairway. No objection to such use was made by. the bank while it owned said building, nor by Walters, until some time in May, 1913, at which time appellee Walters wrote E. T. Neal at Ft. Worth, Tex., where said Neal was then residing, that he did not wish him to longer use said stairway, and that he desired him to close the door leading from the upper landing into the stone building. Thereafter, in the summer of the same year, Walters testified that he had a conversation with E. T. Neal in the town of San Saba, in which, after discussing the matter of common use of the stairway leading to the upper stories of said buildings, he agreed with and promised said Neal that, if he would see that his tenants did not injure of deface said stairway, or the walls thereof, he (Neal) might have and enjoy the use of said stairway so long as he owned said building. Neal admitted receiving this letter, to which he did not reply, but denied the subsequent conversation; but, as the court before whom this case was tried •without a jury rendered judgment in favor of appellees, it is our duty to find the facts in accordance with Walters’ testimony, and we accordingly do so. Walters testified that he closed the door in the store building by consent of the agent of appellant, but this was denied by said agent.

J. P. Gallan; the husband of Mrs. Gallan, was joined pro forma as party defendant in the suit. This suit was brought to enjoin ap-pellees from interfering with appellant’s use of the stairway, and to establish her easement therein. The court rendered judgment in favor of appellees.

Opinion.

An easement may be briefly defined as the right which one person has to use the land of another for a specific purpose. 9 R. C. L. p. 735; Stephenson v. Ry. Co., 181 S. W. 568; Harrison v. Boring, 44 Tex. 267; Jackson v. Trullinger, 9 Or. 397.

It may be created by grant, express or implied, by estoppel, and by a way of necessity. If by grant it must be in writing.

“That an easement over land is such an interest in the land as to require in its conveyance the same formality as is necessary for the conveyance of the fee is too well settled for_ discussion.” King v. Driver, 160 S. W. 416, citing Railway Co. v. Durrett, 57 Tex. 48; Shepard v. Railway Co., 2 Tex. Civ. App. 535, 22 S. W. 267; Irrigation Co. v. Hutchins, 21 Tex. Civ. App. 275, 52 S. W. 101; San Antonio v. Grandjean, 91 Tex. 430, 41 S. W. 477, 44 S. W. 476.

See, also, Bowington v. Williams, 166 S. W. 719; Railway Co. v. Johnson, 156 S. W. 256; Ives v. Edison, 124 Mich. 402, 83 N. W. 120, 50 L. R. A. 134, 83 Am. St. Rep. 329.

As Ray did not expressly reserve in his deed to the bank the right to use the stairway when erected, and as the bank never executed a written conveyance of such easement to Ray, it follows that no easement was created in the stairway by express grant.

Appellants insist that the deed from Ray to Neal conveyed such easement by implication. If it had done so in express terms, it would be of no avail, except as a basis' for limitation, if Ray had no such easement. He could not convey a greater estate than he had. Ray, as is evident from the authorities above cited, had no easement in the stairway, unless he obtained- the same by estoppel, by prescription, or by way of necessity, which features of this case will be discussed in a subsequent part of this opinion.

Appellants rely chiefly upon the case of Howell v. Estes, 71 Tex. 693, 12 S. W. 62, in support of their proposition that the easement passed by implication in the deed from Ray to Neal. That case differs from this in the essential feature that Howell owned both buildings, and therefore had the right to convey an easement in the stairway in one as appurtenant to the other. Having erected the two buildings, and provided but one stairway, it was to be presumed that he intended it as the permanent and only pass-way to both buildings, and his conveyance of the buildings carried with it, by necessary implication, the right to permanently use such stairway for both buildings. That this is the ground upon which said decision rests is evidenced by the following language, quoted with approval by the court from Gale & Wheatley on Easements;

“Strictly speaking, a man cannot subject one part of his property to another by an easement, for no man can have an easement on 'his own property, but he obtains the same right by the exercise of another right, the general right ot property [italics ours]; but he has not thereby permanently altered the quality of the two parts of Ms heritage; and if, after the annexation of the peculiar qualities, he alienates one part of his heritage, it seems but reasonable that, if the alterations thus made are palpable and manifest, a purchaser should take the lands burthened or benefited, as the case may be, by the qualities which the previous owner had undoubtedly the right to attach to it.” 71 Tex. 693, 12 S. W. 62.

In tbe instant case Ray did not own the bank building at the time of his conveyance to Neal, and therefore had no right to burthen it with an easement over the stairway. His deed to Neal being in the ordinary form, no implication arises that he intended to do so. Ray’s deed to the bank being in the ordinary form, there is no implication that he intended to reserve a right to use the stairway thereafter erected by the bank as a means of access to the upper story of his building, unless the same was a way of necessity. So far as the deed is concerned, it does not appear that the bank was under any obligation to erect a stairway, or even a building on the lot which it purchased from Ray. It might have erected a one-story building, or it might have put its stairway on the east instead of the west side of its building. The wooden stairway theretofore used by Ray did not create an easement on his adjoining lot, “for no man can have an easement on his own property.” Howell v. Estes, supra; Alley v. Carleton, 29 Tex. 78, 94 Am. Dec. 260.

Did Ray acquire an easement in the stairway as against the bank by estoppel? Appellants insist that he did by reason of the oral agreement that he should have such easement in consideration of the use of his wall by the bank, and that said agreement was acted upon. If permitting the use of the wall by the bank may be considered the payment of the purchase money, as we think it should, that alone would not take the oral agreement out of the statute of frauds-. Jones v. Carver, 59 Tex. 296; Sullivan v. O’Neal, 66 Tex. 435, 1 S. W. 185; Ward v. Stuart, 62 Tex. 335; Munk v. Weidner, 9 Tex. Civ. App. 491, 29 S. W, 410.

The record shows no act upon the part of Ray which would work an estoppel in pais. He made no improvements upon his building, and spent no money thereon in reliance upon the oral agreement that he was to have the right to use said stairway. If the bank was still the owner of the lot which it bought from Ray, and it paid no consideration for the use of Ray’s wall except its verbal promise to allow him the use of its stair, and now refused to permit such use, Ray might recover of it the value of the use of said wall, and thus recoup himself by an action at law, without recourse to the equitable doctrine of estoppel in pais.

But whatever might be said in support of estopel as against the bank, there is no estoppel as against appellees, for the reason they are innocent purchasers for value, without notice, actual or constructive, of the alleged equities in favor of Ray and his assignees. Appellants contend that Walters had notice of Ray’s claim of easement for the reason that his tenants were using the stairway at the time Walters purchased from the bank. But the bank was also using the stairway. Ray’s use was not exclusive, and therefore apparently not adverse. It was consistent with a license from the bank to so use such stairway. Possession is constructive notice, the same as a recorded deed. Watkins v. Edwards, 23 Tex. 443; Calvert v. Roche, 59 Tex. 463; Harold v. Sumner, 78 Tex. 581, 14 S. W. 995. But, to operate as notice, such possession must be adverse, thereby giving notice of a claim of right. The use of a way over the land of another when the owner is also using the same is not such adverse possession as will serve as notice of a claim of right, for the reason that the same is not inconsistent with a license from the owner. Bowington v. Williams, supra; Railway Co. v. Johnson, supra; Galveston v. Menard, 23 Tex. 410; Long v. Mayberry, 96 Tenn. 378, 36 S. W. 1040; Dunham v. Joyce, 129 Mo. 5, 31 S. W. 337. If this doctrine would not apply to the bank by virtue of actual notice of Ray’s claim of right by virtue of the oral agreement, it would apply to Walters who had no notice of such agreement.

Appellants say that the fact that the bank building was using Ray’s wall as a partition wall was open and visible, and should have led Walters to inquire what consideration was paid therefor, and that such inquiry would have led him to a knowledge of the fact that the consideration was the right to use the stairway. There was nothing in the fact that the bank was using Ray’s> wall as a partition wall to excite inquiry as to what consideration was paid therefor. Ray owned the stone building, and he was president of the bank. Presumably he received a satisfactory consideration for the use of the wall, and no other presumption arose from the facts known to Walters. As Ray was the principal stockholder in the bank, he received a financial benefit by allowing the use of his wall as a partition wall, thereby saving the bank the expense of building a wall; and Walters might reasonably have presumed that this was the consideration received by Ray for the use of the wall.

Appellants argue that the price paid by the bank for the lot ($609) should have indicated to Walters that some additional consideration must have been paid for the use of the wall. There is nothing in the record to indicate that the lot, together with the right to use the wall, was worth more than the consideration recited in the deed to the bank.

If limitation ran in favor of Ray and his assigns, in order for him to acquire an easement by prescription, such limitation must have continued for a period of ten years. Martin v. Burr, 171 S. W. 1046. Without deciding whether or not limitation ran against the bank, we hold that it did not run against Walters, for the reason that he had no actual notice of Ray’s claim of right to use the stairway, and the use of the same by Ray jointly with the owners of the bank building was not such adverse possession or user as implied the assertion of a legal right, rather than a license to so use the same. Long v. Mayberry, supra; Sassman v. Collins, 53 Tex. Civ. App. 71, 115 S. W. 338; Williams v. Kuykendall, 151 S. W. 629; Railway Co. v. Johnson, 156 S. W. 254.

“Since prescription is founded upon the supposition. of a grant, the use or possession on which it is founded must be adverse, or of a nature to indicate that it is claimed as a right, and not the effect of indulgence or of any compact short of a grant. If the enjoyment is consistent with the right of the owner of the tenement, it confers no rig'ht in opposition to such ownership.” 9 R. C. L. p. 776, and authorities cited in note 2.
"Evidence of adverse possession must be clear and positive, and should be strictly construed.” 9 R. O. L. p. 782.

The bank purchased the lot from Ray in February, 1905. It sold the same to Walters in December, 1906. So that, if limitation ran against the bank, it continued for a period of less than two years. Even if limitation ran against Walters, so long as he did not object to the use of the stairway by Ray and his assigns, such limitation ceased to run in the summer of 1913 (eight years after the conveyance to the bank), when Walters asserted his right to the exclusive control of the stairway, and Neal agreed to continue its use as the licensee of Walters.

Ray did not acquire an easement in the stairway by way of necessity. Such right is acquired where the owner of .land sells a part thereof, and it is necessary for him to pass over the land sold in order to reach that which he has retained.

“A way of necessity must be more than a way of convenience; it must be an absolute necessity, without which the party claiming it would be wholly deprived of the use of his land.” Williams v. Kuykendall, supra, 151 S. W. 630; Bowington v. Williams, supra; 9 R. C. L. p. 763.

In the instant case Ray or his assigns could obtain access to the upper story of the stone building by means of a stairway inside thereof. The front of this building is 30 feet. This would lessen, but not destroy, the value of such front. The erection of such stairway would cost something; the amount is not shown in the record. On the other hand, it appears that such building would receive- a benefit from closing the door in the east wall, by reason of the fact that it would reduce the rate of insurance. But whether or not the cost would exceed the benefit is immaterial, it clearly appearing that the use of the stairway in the bank building is not necessary to the use of the upper story of the stone building.

We do not assent to appellees’ proposition that the burden was on appellants to show that the owners of the bank building were not under disability during the period claimed as prescriptive. Appellees cite in support of their contention West v. City of Houston, 163 S. W. 679, in which Mr. Justice Higgins, speaking for the Court of Civil Appeals at El Paso, said:

“It seems to be settled in this state that the burden of proof rests upon one asserting a right of way over another’s land by prescription to establish the negative fact that the owners of the servient estate were free from legal disability during the prescriptive period, against whom a prescriptive - right might be acquired by adverse use.”

We think, as intimated by our Supreme Court in City of Austin v. Hall, 21 Tex. Civ. App. 174, 57 S. W. 573, that this rule applies only where prescription is claimed against those who are not parties to a suit. The other cases cited in West v. Houston rest upon the supposed authority of Austin v. Hall, which expressly limits its holding to those who are not parties to the suit. We see no reason why more proof should be required, as against a defendant to a suit, to establish an easement by prescription than to establish title by limitation in a suit of trespass to try title.

In such suit, if there be exceptions taking the case out of the statute, they must be pleaded. Ortiz v. Benevides, 61 Tex. 63; Lewis v. Terrell, 7 Tex. Civ. App. 314, 26 S. W. 754; Phillips v. Sherman, 39 S. W. 187; Byers v. Carll, 7 Tex. Civ. App. 423, 27 S. W. 190; Childress v. Grim, 57 Tex. 56. This applies also to other forms of actions. June v. Brubaker, 5 Tex. Civ. App. 79, 24 S. W. 79.

Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.
      <@¿»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    CHICAGO, R. I. & G. RY. CO. v. WHALEY.
    (No. 1072.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 13, 1916.
    On Motion for Rehearing, Jan. 10, 1917.)
    1. Cabriebs <&wkey;218(5) — Carriage of Live Stock — Notice of Injuries.
    Stipulations in a contract for the interstate shipment of live stock for written notice to the agent of the initial carrier of a claim for loss, injury, detention, or delay in transportation thereof, as a condition precedent to recovering damages and that the notice be given within one day are not unreasonable, since Interstate Commerce Act Feb. 4, 1887, e. 104, 24 Stat. 379, makes the delivering carrier the agent of the initial carrier.
    IEd. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696; Dec. Dig. &wkey;218(5)J
    2. Carriers <&wkey;218(10) — Carriage of Live Stock — Interstate Commerce Act — ‘ ‘Transportation. ’ ’
    In view of Interstate Commerce Act Feb. 4, 1887, c. 104, § 1, 24 Stat. 379 (ü. S. Comp. St. 1913, § 8563), including in an interstate shipment everything from an order for cars to final delivery under the term “transportation,” damages to an interstate shipment of cattle occasioned by a delay at pens before starting falls within the terms of a contract of shipment requiring notice of claim for loss or injury by delay in “transportation” as a condition precedent to recovery.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 674-696, 947; Dec. Dig. &wkey;?218 (10).
    For other definitions, see Words and Phrases, First and Second Series, Transportation.]
    3. Courts <&wkey;>365 — State Decisions — Effect.
    The holdings of the state courts that injuries received before the voyage began do not fall under the term “transportation” or the contract of shipment are not controlling in the case of an interstate shipment, in view of Interstate Commerce Act, § 1, including everything from order for cars to final delivery under the term “transportation.”
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 950, 952, 955, 9.69-971; Dec. Dig. &wkey; 365.]
    Appeal from Sherman County Court; C. H. Rowland, Judge.
    Action by G. T. Whaley against the Chicago, Rock Island & Gulf Railway Company. Judgment for the plaintiff, and defendant appeals.
    Reversed and rendered.
    Lassiter, Harrison & Rowland, of Ft. Worth, and J. Y. Powell, of Houston, for appellant. Jno. H. H. Stahl, of Stratford, for appellee.
   HUFF, C. J.

This is an action brought by appellee in the county court of 'Sherman county February 26,1915, to recover damages to a shipment of cattle transported over the Chicago, Rock Island & Gulf Railway Company and the Chicago, Rock Island & Pacific Railway Company from Conlen, Tex., to Kansas City, Mo. The negligence alleged was delay and rough handling. It is also alleged the cattle were shipped under a written contract with the initial carrier, and notice was given in the pleadings to produce the same upon trial.

The appellant railway company denied the negligence, and set up certain provisions of the contract, among which was clause 7, as follows:

“That as a condition precedent to claiming or recovering damages for any loss or injury to or detention of live stock or delay in transportation thereof, covered by this contract, the second party [plaintiff] as soon as he discovers such loss or injury, shall promptly give notice thereof in writing to some general officer, claim agent, or station agent of the first party [Chicago, Rock Island & Gulf Railway Company], or to the agent at destination, or to some general' officer of the delivering line, before such stock is removed from point of shipment or from the place of destination, as the case may be, and before such stock is mingled with other stock, and such written notice shall in any event be served within one day after delivery of the stock at its destination, in order that such claim may be fully and fairly investigated. It is agreed that a failure to strictly comply with all the foregoing provisions shall be a bar to the recovery of any and all such claims.”

The appellant alleged notice was not given and that there was an agent and officer who maintained an office and place of business easy of access to any shipper of live stock to that point, as; provided in the contract of shipment. John Fox is shown to have been the livestock agent for the Chicago, Rock' Island & Pacific Railway Company at Kansas City, and at that time W. H. Herbig was the agent there. Fox’s office was located at room 808, Live Stock Exchange Building, and Herbig’s office was about two blocks therefrom. Herbig had a representative who looked after live stock shipments and maintained an office in room 810, Live Stock Exchange Building, adjoining Fox’s office. It was the custom of shippers and claimants to present notices of claims for damages to a shipment of live stock through Fox’s office. There was no such notice or claim presented on this shipment to his office or to Herbig’s office. It was also necessary for shippers and caretakers of live stock into Kansas City over its line of road to present their contract in Mr. Herbig’s office at room 810, Live Stock Exchange Building, to procure free transportation home. The trial court finds there was no notice given, as required by the contract.

The appellee in this case accompanied the shipment of cattle to Kansas City, and it is shown that he had been engaged in the cattle shipping business for the past 12 years, shipping from two to three shipments during each season; that he knew the'location of these offices, and had presented himself to these officers for return passes, and on this occasion did so. He made no effort to find any agent to whom he could present his claim for damages. He also testifies that until he received his “account sales” he did not know of the loss of two head of cattle. He claims that he lost two head in transit, which the court finds was true upon conflicting evidence. The appellee also testified, in connection with the statement.that he knew of the Rock Island offices, that he did not know what Rock Island officer or agent maintained the office; that he could have inquired of them where the local agent, the claim agent, or some general officer of the Chicago, Rock Island & Pacific Railway Company was located.

The trial court found that the provision above set out under the pleadings and facts was unreasonable, nonenforceable, and rendered judgment for the appellee. This action of the court In so rendering judgment is presented under two assignments of error. We beliéve the assignments to be well taken, and that the court should not have so rendered judgment.

The appellee contends that the notice was required to be given to the agent of the initial carrier, which upon its face was unreasonable. This was a through interstate shipment, and the delivering carrier, under the Interstate Commerce Act, is the agent of the initial carrier. The Supremé Court of the United States, in passing upon a stipulation substantially like the one here in question, held:

“In these circumstances it seems plain that the stipulation meant and contemplated - that the notice might be given at the place of destination to an officer or station agent of the connecting carrier, and that notice to it, in view of its relation to the initial carrier, should operate as notice to the latter.” Railway Co. v. Wall, 241 U. S. 87, 36 Sup. Ct. 493, 60 L. Ed. 905; Clegg v. Railway Co., 203 Fed. 971, 122 C. C. A. 273.

The trial court held the provision requiring one day’s notice unreasonable. The case just cited holds the contrary, and that the stipulation in that case is valid and should be enforced. The facts being undisputed it will be our duty, under that case, to here enforce it.

It is contended that the damages were occasioned by delay at the pens before the cattle were started on the trip*by being held there some 24 hours before shipment. The appellee sues on a breach of the written contract, which he in part sets up and calls for its production. Under Interstate Commerce Act, § 1, the damages received by the cattle at pens will fall under the term, “transportation.”

The holdings of the state courts that such damages do not fall under the contract of shipment are not controlling in this case. The act - of Congress includes everything from the order for cars to the final delivery under the term “transportation.” This is the conclusion reached by this court in the case of Railway Company v. Smyth, 189 S. W. 70, and Railway Co. v. Bell (No. 1064) 189 S. W. 1097, where the authorities of the Supreme Court of the United States are cited.

Under the contract and the undisputed evidence the court was in error in rendering judgment for appellee for anything, but should have rendered judgment for appellant.

The judgment of the trial court will therefore be reversed and rendered for appellant.

On Motion for Rehearing.

We shall request counsel for appellee to possess his soul with patience until he gets a case in which the acts of Congress declaring the provisions of the contract here set out void shall apply. We admit with shame-facedness that we. have held that injuries received before the voyage began did not fall under the term “transportation,” and therefore the bill of lading as to such damage did not apply, and that we were then following the rule established by the courts of this state; but, to our consternation and confusion, the Supreme Court of the United States called attention to section 1 of the Interstate Commerce Act, pointing out that from the order of the cars until final delivery at destination it was of one piece, and a part of the transportation covered by the terms of the contract of shipment; that the law would not tolerate a splitting up of these several acts constituting transportation.

With all deference to learned counsel for appellee, we are constrained to overrule the motion for rehearing.

BOYCE, J., not sitting.
      @=wFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    JOHNSON et al. v. WAGGONER et al.
    (No. 7661.)
    (Court of Civil Appeals of Texas. Dallas.
    Dec. 16, 1916.)
    1. Appeal and Error' &wkey;>933(l) — Scope — Presumptions.
    Where at a regular term of court the case was called for trial, and one defendant was absent, and his plea of privilege to be sued in the county of his residence was overruled and judgment rendered, but on the following day motion for new trial was filed on the ground that counsel believed the case would be called on the day following that on which it.was called, with sufficient grounds for such belief, and on appeal neither the transcript nor the statement of facts disclosed the action of the court, but the record disclosed subsequent proceedings, including a final judgment, the court will assume that the motion was sustained.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3772; Dec. Dig. <&wkey;>933(l).]
    2. Pleading &wkey;>116 — Action in County oe Dependant’s Residence — Plea op Privilege — Waives.
    In such case the defendant who entered the plea of privilege did not waive it by his absence.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 231-233; Dec. Dig. <@^110.]
    3. Pleading &wkey;>110 — Action in County op Dependant’s Residence — Plea op Privilege — Waiver.
    In such case, though the defendant filed his motion for new trial on the order overruling plea of privilege without reserving his right to insist thereon if the motion were granted, he did not waive such plea, since in a motion for new trial the applicant need not assert that all pleas to the merits are subject to the action of the court upon his privilege plea..
    [Ed. Note. — Eor other cases, ese Pleading, Cent. Dig. §§ 231-233; Dec. Dig. &wkey;110.]
    4. Pleading &wkey;>116 — Action in County op Defendant’s Residence — Plea op Privilege-Waiver.
    In such case, where frequent continuances were granted over the defendant’s objection, the continuances being granted without prejudice to his plea save that of privilege, he did not waive the plea of privilege.
    [Ed. Note. — Eor other cases, see Pleading, Cent. Dig. §§ 231-233; Dec. Dig. &wkey;110.]
    Appeal from Kaufman County Court; James A. Cooley, Judge.
    Action by J. A. Johnson and others against the Automatic Music Company and D. E. Waggoner, wherein Waggoner filed a plea of privilege of being sued in another county. Prom an order sustaining his plea and changing the venue, plaintiffs appeal.
    Affirmed..
    Bumpass & Crumbaugh, of Terrell, for appellants. Lee R. Stroud, of Kaufman, for ap-pellees.
   RASBURY, J.

Appellants initially sued the appellee Automatic Music Company to cancel certain promissory notes and for damages. Subsequently appellants amended their petition and made appellee Waggoner, who it was alleged had the notes in his possession, a party to the suit. Waggoner, among other matters, filed a plea asserting his privilege of being sued in the county of his residence, which was alleged to be Dallas county. This plea was ultimately sustained, and the venue of the suit changed to Dallas county. The action of the trial court in that respect is the only issue presented on appeal. There is in the record an agreed statement of the facts which form the basis of the court’s action. We will not undertake a detailed statement thereof, but state such of them, while considering the issue, as may be necessary to an intelligent consideration thereof.

The first contention, in effect, is that the plea was erroneously sustained, for the reason that at a former term of court, when the case was called for trial, appellee Wag-goner failed to present himself and insist upon his plea, whereupon the court overruled same, and as a consequence the plea was waived. The facts in support of the issue thus presented are that at a regular term of court the case was called for trial, and whereupon, appellee Waggoner not being present, the court overruled the plea of privilege and rendered judgment against all of the appellees as prayed. On the following day appellees filed motion for a new trial both as to the order overruling the plea of privilege as well as to the judgment on the merits. The first ground of the motion is that appellees and their counsel believed the case would be called on the day following the day on which it actually was called, accompanied with a full statement of the facts and circumstances on which they based such belief. The second and fhird ground is that the court was without jurisdiction as to appellee Waggoner, reciting the facts forming the basis of the contention. The other grounds had reference to the defense of all on the merits. Neither the transcript nor the statement of facts disclose the action of the court on such motion. The record does, however, disclose subsequent proceedings in the case, including the final judgment from which this appeal is taken, and we will, as does counsel, assume that the court sustained the motion and set aside the judgment.

The effect of the action of the court in granting the motion for new trial was to reinstate the cause in the precise position it occupied before the order was entered. The fact that appellee was not present when the order was entered cannot serve as a basis for holding that, being so absent, he waived his plea. Appellee was not present in court, it is true, but the reason was that he believed the case would be heard the day following. The court considered he had good basis for his belief or the new trial would not have been granted. Certainly it cannot then be said that, when the case was called in advance of the setting and the plea overruled, appellee waived it.- Before he could be held to have waived the plea it should at least appear that he had an opportunity to present same, or, having the opportunity, negligently failed to do so. Here appellee had neither' opportunity to present nor occasion to waive it, due to the misunderstanding in reference to the setting of the case.

The next contention is, in substance, that when appellee filed his motion for new trial on the order overruling his plea of privilege, without reserving his right to insist thereon in the case the motion was granted, thereby waived it. We have in discussing the first issue presented by appellant stated the substance of the motion for new trial, which was that the case was heard on a day other than the one appellee understood it would be heard, and hence the absence of himself and counsel, that the court was without jurisdiction, and then a statement of his defenses on the merits followed by prayer for new trial. We conclude that in a motion for new trial it is not necessary for the applicant to assert, as he does in case of pleading before trial, that all pleas to the merits are subject to the action of the court upon his plea setting üp his privilege to be sued in another county. The motion for new trial serves to point out the alleged errors at the trial, and we know of no reason why the applicant may not follow any order he deems convenient in that respect. The question of the order of pleading is settled long anterior to’ the filing of the motion for new trial, and whether there has been due order of pleading must be determined by an inspection of the pleading rather than the order in which the pleading is referred to in motion for new trial. Further, as we construe the holding in Wolf v. Sahm, 55 Tex. Civ. App. 564, 120 S. W. 1114, 121 S. W. 561, cited by appellant, it decides the precise question adversely to the contention here.

It is next urged that the plea of privilege was waived by appellee in not reserving his right to thereafter insist on the same at a term of court when the case was continued upon application of appellant and over the objections of appellee. The facts upon which this issue is based are that at the September term of court, after appellee’s motion for new trial had been granted, the case was called for trial, and appellant sought a continuance of the case, which appellee Wag-goner contested. The application was granted. Appellee Waggoner did not, when the case was so continued, over his objections, reserve the right thereafter to insist on his plea of privilege. It does appear, however, that appellee was made a party to the suit in June, 1914, and at each continuance thereafter, so the statement of facts recites, the case was continued without prejudice to his plea, save the one which he contested. The case had in the meanwhile been placed upon the jury docket. Under the facts stated we conclude as an original question that such a continuance would not be a waiver of ap-pellee’s plea of privilege, since it would, in our opinion, be illogical to hold that one who contests the action of the court in continuing his plea of privilege had consented thereto, and hence waived it. However, the issue has on other grounds been decided adversely to appellant. Dorroh v. McKay, 56 S. W. 611. There it is said, on authority of Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224, that the purpose of article 1910, Vernon’s Sayles’ Civ. Stats., which requires all dilatory pleas to be determined during the term at which they are filed, is to call the attention of the court to the plea in order to enable the court in the expedition of business, to dispose of it before trial upon the merits, and hence the party presenting the plea was obliged to bring the plea to the attention of the court at the first term of court. The court then holds that, when the plea is called to the attention of the court at the first term thereof, as was done in the instant case, and continued with the consent of the court or otherwise, later continuances of the case is not a waiver, since, when the plea is called to the attention of the court, and he fails to dispose of it, he does so on the 'ground that expedition will in no way be hindered by passing it until the trial upon the merits. Such a presumption here is clearly to be indulged when it is considered that both the facts of the plea, as well as the merits, were to be determined by jury, and could not be separated.

The judgment is affirmed.
      <&wkey;Fcr other oases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: HALL, J.

text:
    PANHANDLE & S. F. RY. CO. v. CURTIS.
    (No. 1088.)
    (Court of Civil Appeals of Texas. Amarillo.
    Dec. 27, 1916.)
    1. Evidence <&wkey;317(2) — Hearsay Evidence-Admissibility.
    Where a shipper did not accompany cattle, his testimony in an action for damages in shipment that they brought him a certain amount, that 'he was not at the destination and did not see them weighed, but that the commission company stated they weighed a certain amount, and further testimony that one animal which was killed in transit weighed a certain amount at destination, was inadmissible as hearsay.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1175, 1192; Dec. Dig. &wkey;317(2).]
    2. Evidence >&wkey;<593 — Stjeeiciency—Improper Evidence.
    Where there is no evidence to support the judgment save inadmissible hearsay evidence, it must be reversed.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2430; Dec. Dig-. <&wkey;>593.]
    3. Evidence &wkey;>572 — Expert Witnesses — Weight oe Testimony.
    In an action by an inexperienced shipper of live stock for damages in transit, it was not error to permit him to testify as an expert as to the shipment, though his inexperience went to the weight of his testimony, and not its admissibility.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2395-2398; Dec. Dig. &wkey;572J
    Appeal from Gray County Court; Siler Faulkner, Judge.
    Action by R. J. Curtis against the Panhandle & Santa Fé Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Terry, Cavin & Mills, of Galveston, and Hoover & Dial, of Canadian, for appellant. Chas. C. Cook, of Pampa, for appellee.
   HALL, J.

Appellee sued appellant for damages to cattle shipped from Pampa, Tex., to Wichita, Kan. The cattle were sold on the market. Appellee did not accompany the shipment but over the objections of appellant, he was permitted to testify as to the weight of the cattle and the market price at Wichita. His testimony is that he did not accompany the shipment; that they brought him $6 per cwt.; that he was not there and did not see them weighed, but he knew what he received for them and what the commission company sent to the bank to his credit; that the commission company wrote him the cattle weighed 33,890 pounds at Wichita; that his knowledge was obtained from that letter and from the account sales sent him by the commission company. It appears that one animal was killed in transit, and over appellant’s objections appellee was also permitted to testify what this animal weighed at destination and what its market value was. This evidence was all hearsay and should not have been admitted. Since the facts sought to be proven by appellee were not established by the testimony of any other witness, the judgment must be reversed. Railway Co. v. Startz, 97 Tex. 167, 77 S. W. 1; Railway Co. v. Cauble, 41 Tex. Civ. App. 348, 91 S. W. 244; T. & P. Ry. Co. v. Leggett, 44 Tex. Civ. App. 296, 99 S. W. 176.

We think the court did not err in permitting appellee to testify as an expert, and his limited experience in the business of shipping cattle to market affected the weight of the testimony, and not its admissibility.

Reversed and remanded.
      <§£»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RAINEY, C. J.

text:
    SOUTHERN SURETY CO. v. WESTERN INDEMNITY CO.
    (No. 7575.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 18, 1916.
    Rehearing Denied Jan. 6, 1917.)
    1. Contracts <&wkey;233 — Construction—Maintenance oe Agency — Expenses.
    Where one surety company sold to another its business under a contract which required the seller to maintain an agency to aid in transferring the business and to handle the business in a certain state during the year, and provided that the seller Should receive a percentage of the commissions collected, the seller was required to pay the expenses of maintaining that agency and the salary of subagents thereunder, since those duties were imposed by the contract, so that the compensation therein fixed by the parties is controlling.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1098; Dec. Dig. &wkey;j233.]
    2. Contracts <&wkey;229(2) — Compensation — Percentage oe Profits — Computation.
    Where a surety company sold its pool excise business to another under a contract which entitled the seller to a percentage of the net profits for a year ending June 15th, and it appeared that the year in that' business began October 1st, so that a portion of the premiums, collected during the period of the contract was not earned at its expiration, the percentage of the profit was to the figured only on the portion of the premiums received which was actually earned at the expiration of the contract.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. § 1045; Dec. Dig. <&wkey;229(2).]
    Appeal from District Court, Dallas County ; Kenneth Foree, Judge.
    Suit by the Western Indemnity Company against the Southern Surety Company. Judgment for the plaintiff, and defendant appeals.
    Reversed, and judgment rendered for defendant.
    Albert G. Moseley, of St. Louis, Mo., for appellant. Love & Taylor and Carden, Starling, Carden, Hemphill & Wallace, all of Dallas, for appellee.
   RAINEY, C. J.

Both appellant and appel-lee are incorporated. The appellee, as successor to the Federal Union Surety Company, on January 4, 1915, brought suit against appellant for a settlement on a contract between appellant and Federal Union Surety Company alleging appellant to be due it the sum of $4,896.30, and asks judgment therefor. Appellant answered, denying any indebtedness to appellee, but alleged appellee indebted to it in the sum of $10,380.15, and asks for judgment therefor. A trial was had without the intervention of a jury, and judgment was entered against appellant for $4,893.30, from which this appeal is taken.

The case was tried upon an agreed statement of facts, a brief résumé of which made in appellant’s brief we adopt, which is as follows:

The Southern Surety Company, hereinafter styled defendant, has its principal office in St. Louis and does a general surety business in the various states. The Western Indemnity Company, hereinafter styled plaintiff, does a casualty, fidelity business in Texas and other states.

On May 18, 1912, defendant and Federal Union Surety Company made a written contract whereby the latter transferred to defendant its surety business and good will and agency force and agreed to establish and maintain at its own expense a general agency office for the defendant at Indianapolis, Ind., for one year, which said agency was to cooperate with the Federal Union Surety Company in turning over the business and agency of the Federal Union Company to the defendant, and the defendant agreed to take over the business and agency of the Federal Unioh Company. By the terms of the contract the defendant agreed to pay the Federal Union Company for the business that the defendant should write for one year through the general agency and the said agency force of the Federal Union Company 35 per cent, of the gross premiums received by the defendant for writing two classes of business obtained through the general agency and agency force of the Federal Union Companj', to wit: (a) Bonds in substitution or renewal of Federal Union Surety Company bonds theretofore written; and (b) the first bond written by the defendant for a person who had theretofore within 12 months patronized the Federal Union Company by contracting to pay it any premiums on account of a bond executed by it, by which was meant, according to the contract, the total gross premiums less1 return premiums, cancellations, and that portion of the premiums received which might be paid out for reinsurance. The contract also provided that, in lieu of commissions, defendant would pay the Federal Union Company 50 per cent, net profits derived by it from the pool excise business as might be done by the defendant within one year from June 15, 1912, in excess of 4 per cent, of such pool excise business, it being agreed that the net profits should be ascertained by subtracting from the gross premiums derived from the pool excise business for one year, commissions paid to agents, losses, cancellations, and returned premiums accrued during the year, on account of the business for which the gross premiums were collected, but no loss should be considered upon which claim had not been made within 60 days after the expiration of the year.

It was also agreed that the defendant would pay the Federal Union Company upon new business that might be written by the defendant through the agency established at Indianapolis and the agency force that might arise within the state of Indiana a general agent’s commission of 35 per cent, of the gross premiums received, all expense of procuring such new business and all agents’ commissions therefor to be paid by the agency or by the Federal Union Company; it being understood that the new business is not of a class or kind that may be embraced in any of the classes of business above mentioned. The contract provided that the defendant would handle the business herein-before mentioned from its St. Louis office, except the business arising in Indiana, at any time it should so desire, and that the agents then in the employ of defendant in Indiana and elsewhere were to continue to report the business secured by them direct to the St. Louis office of defendant, and that such agents were in no case to come under the supervison or control of the general agency to be established at Indianapolis by the Federal Union .Surety Company, nor should such general agency receive commissions on business written through such other agents. Final settlement was to be made between the defendant and the Federal Union Company at the end of one year after June 15, 1912, and no losses, cancellations, returned premiums, or portions of premiums paid for reinsurance should be charged against the Federal Union Company that had not arisen out of the business within one year from and after June 15, 1912. The plaintiff succeeded to all the rights and interests that the Federal Union Surety at any time had under the contract referred to above, and became responsible for all liabilities of the Federal Union Company under the contract.

The gross premiums covered by the said contract between the defendant and the Federal Union Company, other than the pool excise business, and which were collected by the Federal Union Surety Company, amounted to $42,395.56, and it is agreed that the Federal Union Surety Company is entitled to the following credits, to wit:

Commission, at 35%. $14,838 44
Cash paid by the Federal Union Surety Company to defendant_ 15,506 40
Postage. 30 00
¿Etna Trust Company._. 355 02
Commission on outside business... 446 82
One-half of brokerage and one-half of license fees. 837 47
Or a total of.: $32,014 15
Leaving a balance which the defendant claims to be due it upon this part of the statement of $10,380.41.

The business provided for in the. contract over which this controversy arose was transacted in the states of Indiana and New York, and are controlled by separate provisions.

1. Under the provisions relating to the business to be done in Indiana the appellee claims the sum of $5,360.19 as expenses paid to subagents, and this sum was allowed by the trial court as just. Appellant insists that the court erred, in that it is contrary to the terms of the contract.

The contract, in effect, provides that the Federal Union Surety Company should maintain an agency in Indiana, pay all expenses, and account to appellant in consideration therefor; for such services it was to receive 35 per cent, of the gross premiums received. Wte are of the opinion that the terms of the contract providing for the consideration to be paid excludes the idea of any further amount being paid. The maintaining of an agency necessarily involves the expense of subagent, and, as appellee had contracted to maintain an agency, it must necessarily bear the burden thereof. Boren v. Life Ins. Co., 99 Ga. 238, 25 S. E. 314; Montgomery v. Life Ins. Co., 97 Fed. 913, 38 C. C. A. 553; Clark & Skyles on Agency, vol. 1, § 352.

The compensation having been fixed in the contract for the services rendered, it controls.

In Clark & Skyles, supra, the rule is thus stated:

“A contract of agency may expressly fix the amount of compensation, and may also fix the mode of payment and the conditions on the happening of which it shall be deemed to have been earned, and when this is the case the express terms of the contract are controlling. In other words, an express agreement as to compensation, if there is no breach of contract by the principal, will exclude any implied contract or custom to pay compensation otherwise than as agreed, and the agent cannot recover on a quantum meruit under such a contract. There is ‘no standard of value that could be more satisfactory than that which the parties fix for themselves, and where there is a special contract fixing the terms and conditions on which one party shall serve another, in the absence of proof rescinding and altering it, it is conclusive.’ Thus, if the contract provides that the principal shall pay the agent what the principal thinks right after the services are performed, the compensation fixed by the principal is conclusive, in the absence of fraud or bad faith, although considerably less than the reasonable value of the services.”

It was error for the court to allow appellee the amount paid subagents in rendering his judgment.

2. Pertaining to the business in the state of New York there is a difference between the parties. The appellee claims that under the contract it is entitled to the sum of $9,916.52, which was allowed by the trial court; while the appellant concedes the amount to be $5,831.52 and charges that the evidence does not show a larger amount. Relating to this branch of the ease, the contract reads:

“In lieu of commission, Southern Surety Company will pay to Federal Union Surety Company 50 per cent, of the net profits derived by it from the pool excise business of Federal Union Surety Company in the state of New York taken over by Southern Surety Company for one year from the date of acceptance hereof, it being understood that the 50 per cent, of the net profits herein provided for shall be calculated upon so much of such excise business as may be done by Southern Surety Company within one year from June 15, 1912, in excess of 4 per cent, of such pool excise business, which, it is hereby agreed, has been or will be assigned to Southern Surety Company in its own right. The net profits aforesaid shall be arrived at by subtracting from the gross premiums derived from such business for the period mentioned commissions paid to agents, losses, cancellations, and returned premiums accrued during such year on account of the business for which such gross premiums are collected, provided, however, that no loss shall be considered upon which the claim is not made within sixty days after the expiration of such year.”
“Seventh. Complete and final settlement is to be made at the end of one year after June 15, 1912, between Southern Surety Company and Federal Union Surety Company, and no losses, cancellations, returned premiums, or portions of premiums paid for reinsurance shall be charged against Federal Union Surety Company that have not arisen out of the business here-inbefore described or that have not occurred within one year from and after June 15, 1912.”

The excise agreement marked Exhibit B, to which appellant was a party, is a mutual reinsuring agreement to which the Federal Union Surety Company was not a party. It shows that the pool excise year began October 1st of each year and ended September 30th the following year. Appellee “in its' first amended original petition contends that it has the right to recover a share in the whole business done by Southern Surety Company from October 1, 1912, to September 30, 1913. Southern Surety Company says that it is willing to pay such share of those earnings as are properly proportionable to the period of the year extending from October 1, 1912, to June 15, 1913, or such share as would be based upon seventeen twenty-fourths of the year’s earnings.” The contention of Southern Surety Company is that the interest of plaintiff attaches to only seventeen twenty-fourths of these gross premiums, for only seventeen twenty-fourths thereof would be earned by June 15, 1913, and that the remaining seven twenty-fourths thereof would not be earned until after June 15, 1913 — in other words, would not be earned at all within the year covered by Exhibit A.

The excise business done began October 1, 1912, and ended September 30, 1913, and gross premiums paid in advance about October 1, 1912, amounted to thq sum of $733, 708.70. Said premiums were to run for the following 12 months. The commissions for said year were $127,174.14, and cancellations amounted to $5,980, or making the total deduction, $133,154.14, leaving net premiums to the amount of $600,554.86. This amount represents total premiums for the period of 12 months from October 1, 1912, to September 30,. 1913.

On June 15, 1913, of these premiums only that portion actually earned up to that date should be considered in any statement of profits; in other words, while premiums may have all been paid within one month, they were paid in advance for a period of 12 months, and were only available for the computation of profits when actually earned ; so in arriving at the profits for 8Y2 months of this period it is only fair to take into account the earned premiums for this period or from October 1, 1912, to June 15, 1913, which, after making the -proper deductions, would leave for the share of each $5,861.52. Deducting this amount from the amount of $10,380.41 to which appellant is entitled leaves due appellant $4,518.89, for which judgment in its favor is here rendered.

Believing the evidence shows that the trial court erred in rendering judgment in favor of appellee, it is reversed, and judgment here rendered for appellant for said sum of $4,518.89.

Reversed and rendered.