author: CARL, J.

text:
    INDUSTRIAL COTTON OIL CO. v. LIAL et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 4, 1914.
    On Motion for Rehearing, March 4, 1914.)
    1. Death (§ 41) — Action by Mother — Necessary Parties.
    Where defendant had settled with the wife and children of a deceased, they were not necessary parties, in an action for loss of support by the mother.
    [Ed. Note. — For other cases, see Death, Cent. Dig. ij§ 56, 57, 79; Dec. Dig. § 41.*]
    2. Parties (§ 80) — Nonjoinder of Party Plaintiff — Pleading.
    Defendant must plead nonjoinder of necessary parties plaintiff.
    LEd. Note. — For other cases, see Parties, Cent. Dig. §§ 123-181, 170; Dec. Dig. § 80.]
    3.Master and Servant (§ 217) — Risks Assumed by Servant.
    A servant cannot assume a risk that he does not know about.
    [Ed. Note. — For other.cases, see Master and Servant, Cent. Dig. §§ 574^600; Dec. Dig. § 217.]
    4.Master and Servant (§ 265) — Action eor Injury to Servant — Burden of Proof — Warning and Instructing Servant.
    In an action against a cotton oil company for the death of a servant caused by cotton seed hulls falling upon him and smothering him, the burden was upon plaintiff to prove his allegation that defendant failed to warn the servant as to the danger incidental to the work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.]
    5. Master and Servant (§ 278) — Injury to Servant — Sufficiency of Evidence — Failure to Warn.
    In an action for the death ■ of a servant caused by cotton seed hulls falling upon him and smothering him, evidence held insufficient to show failure of defendant to warn him of the dangers of the work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960--969, 971, 972, 977; Dec. Dig. § 278.]
    6. Trial (§ 252) — Instructions—Contribu- . Tory Negligence — Applicability to ' Evidence.
    In an action for the death of a servant caused by cotton seed hulls falling upon him, where there was no direct evidence of contribu--toiy negligence, there being no eyewitnesses, and defendant’s contention that the servant was asleep not being borne out by the position of the body, the court properly refused to charge on contributory negligence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 596-612; Dec. Dig. § 252.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Action by Antonia Gonzales Lial and another against the Industrial Cotton Oil Company. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded. Motion for rehearing overruled.
    Baker, Botts, Parker & Garwood, of Houston, Jas. A. Harley, of Seguin, and J. 0. Townes, Jr., of Houston, for appellant. H. E. -Short and P. E. Campbell, both of Se-guin, for appellees.

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

   CARL, J.

Antonia Gonzales Lial and her husband, Juan Lial, appellees, sued the Industrial Cotton Oil Company, a corporation, appellant, in the district court of Guadalupe county, to recover damages by reason of the death of Frank Gonzales, an adult son, about January 27, 1913. The petition alleged that Frank Gonzales was shoveling cotton seed in the plant of appellant, and that a high perpendicular bank of seed fell on him and smothered him to death; that he was unfamiliar with the dangers of his employment, and appellant failed to warn him of such dangers; that he was contributing $3 to $4 per week to his mother’s support and would have continued so to do; and that he was 23 years of age and his mother 43 at the time of his death. Appellant answered by general demurrer, special exceptions, general denial, and pleas specially of assumed risk and contributory negligence on the part of deceased. The trial resulted in a verdict and judgment for $650 in favor of appellee Antonia Gonzales Lial, and from that judgment this appeal is prosecuted.

The first assignment of error asserts that there was error because the surviving wife and children of Frank Gonzales were not made parties. The petition alleged, and the proof showed, that the appellant had settled with them, and, that being true, they had no interest in the litigation in this cause, and there was no error in this respect.

We are well aware of the rule that all parties having an interest by reason of the wrongful act are necessary parties to the suit. Railway Co. v. Whatley, 76 S. W. 589; Vernon Cotton Oil Co. v. Catron, 137 S. W. 404; Railway Co. v. Le Gierse, 51 Tex. 189; Railway Co. v. Culberson, 68 Tex. 664, 5 S. W. 820. But the petition in this case showed that the appellant had settled with the widow and children. Then what good could come of making them parties? The proof supported the pleadings, and no useful purpose could have been subserved by making the widow and children parties. H. 6 T. C. Ry. Co. v. Bradley, 45 Tex. 171. If there had been any question that the surviving widow and children had not settled, exception should have been made or proper pleas made by the defendant below, because the petition alleged settlement with her. Dallas, etc., Ry. Co. v. Spiker, 59 Tex. 435, distinguishing March v. Walker, 48 Tex. 372. In Ft. Worth & D. C. Ry. Co. v. Wilson, 85 Tex. 516, 22 S. W. 578, it was sought to defeat a motion for new trial by showing that a necessary party had executed a release, and the court said: “Conceding, as was suggested in the case last referred to, that, if it be shown that the unjoined beneficiary has settled his claim, the judgment may stand, it still does not follow that such an important fact can be established by ex parte evidence, or by affidavits offered in opposition to a motion for a new trial. Such proof should be made during the progress of the trial, under the rules governing the introduction of other evidence, and subject to the valuable privilege of cross-examination.”

In the case at bar the fact that the widow and children of deceased were not parties was directly called to defendant’s attention, for it is therein shown that they have no interest in the suit. How, then, can it be said that the verdict of the jury was affected by the idea that it was to be brought for the benefit of ail those provided for by statute? If the defendant desired them made parties, it became its duty to plead it in some way. The Spiker Case, supra, says that, if the mother had settled her claim, that should have been shown, and the judgment could then stand. The assignment is overruled.

The second, third, and fourth assignments complain of the action of the court in refusing to instruct for defendant. Deceased was set to work where he met his death, and Mr. Baker, the manager, does not claim that he warned the deceased of the danger incident to his work. John Brawley says he did not warn him of such dangers. Mr. Gazelle, the night engineer, seems to have had charge of the mill at night, but his duties were with the mechanical department. Gazelle hired him and put him to work. Deceased had never worked at a place like this before, according to his mother’s testimony, and had only been at work there about a week, and just that day at shoveling seed; and the evidence of Brawley and others shows that it was dangerous work. The seed were in a wall varying from 15 to 25 feet high in almost a perpendicular bank. Brawley states that he was put in charge of the seed house at night, and that he did not tell deceased of the danger of the work; but he was not a vice principal. Neither did Mr. Baker, the manager, nor did any of the others who testified, say they warned him. On the contrary, they deny that they did. Baker had no personal knowledge of the employment. Gazelle, having charge of the mill, with power to employ and discharge employes, was a vicfe principal, and he set deceased to work where he met his death. Deceased was a new hand who had never worked at a business of this kind before, and all of defendant’s employés who testified denied warning him of the dangers of the work. A servant cannot be said to assume a risk he does not know about.

The burden is on the plaintiff to show that deceased was not warned, and has this been done? Can it be done by the introduction of testimony that certain other employes did not warn him? The vice principal was Gazelle, and he hired the man and set him to work. He did not testify on the trial.

The Supreme Court has passed upon a case very similar to this one in Commerce Cotton Oil Co. v. Camp, 105 Tex. 130, 145 S. W. 902: “The plaintiff charged in substance that the cotton oil company, without her knowledge or consent, employed her minor son, Oscar Camp, and set him to work at a dangerous and hazardous employment, and, knowing that Oscar did not understand the risk, failed to warn him of the danger, in consequence of which Oscar was killed by the falling of the cotton seed hulls upon him. The allegations were full; but it is unnecessary to state them more fully here. To recover, the plaintiff was required to prove that Oscar was employed by G. W. Day, the general manager, and the only person for whose negligence the corporation would be liable. Also she must have proved that Day negligently set Oscar to work at a dangerous employment, without informing the boy of the danger.” The court reversed and rendered that ease.

It is contended that the defendant was negligent in setting deceased to work at a dangerous place without warning him of such dangers. Where is the evidence that Gazelle, the man who hired him and set him to work, did not warn deceased of the dangers? There is none. Gazelle did not testify, and no witness said that he did not warn deceased. The fact that Brawley did not warn deceased is not sufficient. Under the holding in the Camp Case, supra, Brawley’s actions could not make the oil mill company liable. The burden is on appellee to show that deceased was not warned, and unfortunately this burden has not been discharged. Judge Brown says: “To the complaint, it is a harsh law, we answer that it was enacted by the Legislature, and this court has no authority to change it. ‘Hard cases make bad law.’ ” It does seem a harsh law that requires appellee to go into the camp of tile opposition to get proof, for the lips of Gonzales are sealed, and about the only man from whom this testimony can be obtained is Gazelle, the foreman who employed him. But the law is thus written, and the court of last resort has so interpreted it. Therefore it becomes our duty to reverse the judgment, and, inasmuch as plaintiff may be able to show by Gazelle or otherwise that he did not warn deceased of the dangers, we will remand the cause for trial. Under the decisions referred to, the court would have been justified in giving the requested instructions, but, since the proof may be supplied on another trial, we do not here render.

The fifth assignment complains of that part of the court’s charge reading as follows: “A servant assumes the risks of employment provided he knows the danger, or in the ordinary discharge of his own duties must necessarily have acquired the knowledge. So, if you find from the evidence that the defendant knew the danger of working near the bank of cotton seed (if there was such danger), or in the ordinary discharge of his own duties must necessarily have acquired the knowledge of such danger, then he assumes the risk's; and the plaintiff would not be entitled to recover; and, if you so find, you will find for the defendant.” The objection is that it places a greater burden on defendant than the law requires. In view of another trial, it might be well for the court to observe the rules laid down in Railway Co. v. Kizziah, 86 Tex. 90, 23 S. W. 578, where a similar charge was held to place too great a burden on the defendant.

The court did not charge on the question of contributory negligence. No one saw the accident, and the surrounding circumstances must be looked to in ascertaining how it happened. Defendant below pleaded contributory negligence on the part of the deceased, and sought to show from the position in which the body was found that deceased had sat down and gone to sleep. But the facts do not warrant such a conclusion. It was a mere theory; and, further, the testimony as to how cotton seed slough off is farfetched. Accidents do not follow rules. One man said that cotton seed begin gradually to trickle down from the top in a way to give time to a person to get out of the way. Defendant sought also to show by circumstances that deceased had his back to the wall of seed, and “that if a man were shoveling seed, and it began sloughing, it would commence to fall right down at his feet in front of him; if he were digging it out, it would gradually come right down to him. * * * It. might cover him up three, four, or five feet if he would stand right up in front of it and stand there. If a man was leaning back against a pile of cotton seed asleep, and it commenced to slough, it would cover him entirely up.” The witness, John Brawley, says he was working there at the time, but did not see the accident; that there was a perpendicular wall of seed from 18 to 25 feet high at the place where Gonzales was smothered to death. “I did not see Frank Gonzales when he met his death, but from digging him out, and the position in which he was, he met his death by the seed sloughing or caving down and covering him up. Frank Gonzales was doing the work that Mr. Gazelle, the night engineer, had told him to do, and was working at the very place that I had instructed him as night foreman. I don’t know whether Frank Gonzales ever shoveled seed into a conveyor previous to the night he had met his death, but I know that I had never seen him at that sort of work before.” Then: “^hoveling seed into a conveyor where the seed is piled as high as they were on the occasion of Frank Gonzales’ death is very dangerous, especially at night, for the reason that they cannot see when they are going to slough or cave.”

Ed Wade helped dig Gonzales out, and he says: “He was standing pretty well straight. He was standing pretty near straight up. He was facing east. The bank of seed was in back of him. He was nearly in a straight position.” The idea that Gonzales was asleep is not supported by the facts. The court charged on assumed risk, and the facts did not require a charge on contributory negligence. That Gonzales was asleep was mere surmise and not borne out by the position of the body, which was not controverted by any witness. Courts will not be required to charge upon mere academic questions not supported by substantial facts. The court did not err in refusing to charge on contributory negligence.

What we have said will dispose of the other assignments.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Counsel for appellee, in support of their contention that the burden was on the employer to show that the deceased was warned of the dangers of the employment, have cited Lawson v. Hamilton Compress Co., 162 S. W. 1023, Railway Co. v. Worden, 90 Ark. 407, 119 S. W. 830, and Labatt on Master and Servant, vol. 1, § 291. In these cases injuries to minors were under consideration; and it was the purpose of these authorities to say that, where minority is pleaded and relied on to avoid the assumption .of risk, the burden is on the employer to show that, notwithstanding his minority and lack of matured judgment he was warned of the danger. In short, if the minor did not have sufficient judgment to comprehend the danger, this would be overcome by the master showing that he was in fact told of the danger. But even if that rule were as broad as indicated in the Lawson Case, supra, it would have no application to this case because deceased was not a minor.

The motion for rehearing will be overruled.


source: Caselaw Access Project

author: TALBOT, J.

license: Public Domain

text:
    WILLIAMS v. PEARMAN.
    (Court of Civil Appeals of Texas. Dallas.
    Feb. 21, 1914.)
    1. Specific Performance (§ 126) — Relief-Damages in Part.
    Where the contract is to purchase land for a money consideration, and vendor cannot convey all of the land which he agreed to convey, the purchaser may compel a conveyance of the land which vendor is able to convey, with an abatement of price for that part which he cannot convey.
    [Ed. Note. — For other cases, see Specific Performance, Cent. Dig. §§ 55, 401 — 405; Dec. Dig. § 126.]
    2. Specific Performance (§ 129) — Exchange of Land — Relief—Damages in Part.
    Specific performance of an agreement to exchange lands will not be decreed as to a part of the land to which defendant has title, with a money judgment against defendant for the value of that part which he is unable to- convey, since that would require the performance of a contract which defendant did not make; and hence, where defendant agreed to convey to plaintiff, 875 acres, and also a 40-acre tract if defendant secured, possession thereof, in consideration of plaintiff conveying to defendant a half interest in other property, one-half of the mortgage on which defendant agreed to assume, and of the execution of plaintiff’s notes to defendant for a certain sum in case defendant could convey the 40 acres, specific performance could not be decreed against defendant as to the part of the land he could not convey, with damages for the value of the remainder.
    [Ed. Note. — For other cases, see Specific Performance, Gent. Dig. §§ 420-423; Dec. Dig. § 129.]
    Appeal from District Court, Navarra County; H. B. Daviss, Judge.
    Suit by N. B. Pearman against J. F. Williams, individually and as executor of B. J. Williams, and others. From a judgment for plaintiff, the defendant named appeals.
    Reversed and remanded.
    Spell & Sanford, of Waco, for appellant Richard Mays, of Corsicana, and Alva Bryan, of Waco, for appellee.

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

   TALBOT, J.

N. B. Pearman brought this suit against appellant J. F. Williams, individually and as executor of the estate of B. J. Williams, deceased, and others, but all of the defendants except J. F. Williams, individually and as said executor, were thereafter dismissed. Plaintiff alleged that in July, 1911, defendants were possessed of a certain 875.2 acres of land in Henderson county, Tex.; that on the 7th day of August, 1911, defendant J. F. Williams, for himself and as agent of the other defendants, and as such executor, entered into a certain contract in writing with plaintiff, whereby said Williams obligated 'himself to convey to plaintiff the above-described Henderson county land, and also 40 acres out of said survey, provided said Williams secured possession of same, for a consideration of $17.50 per acre, and that under said contract plaintiff was to convey to defendant Williams a one-half undivided interest in lot 7, block 6, of the town of Aurora, Lawrence county, Mo.; that said contract further provided for an exchange of said properties, and that plaintiff was to execute to defendant Williams three notes for the sum of $1,015.33% each; but, in event the 40 acres mentioned in said' contract, as being in addition to said 875.2 acres, could not be conveyed, plaintiff was to execute to the said Williams three notes for $773 each, said notes to bear 8 per cent, interest; that defendant Williams had failed and refused to carry out his contract, though plaintiff was ready, able, and willing to carry out his part; that if the court should decide that plaintiff is not entitled to specific performance of said contract by defendants in whole or in part, then in the alternative he alleges that from the terms of said contract plaintiff was to pay defendant the sum of $17.50 per acre for said land, and defendant was to pay plaintiff the sum of $13,000 for said Aurora property and assume an indebtedness of one-half of $6,000 against said property; that the market value of said 8752/io acres of land above described, on or about jthe 7th day of September, 1911, was $12 per acre; that the market value to an undivided half interest of said Aurora property on or about said date was $5,000; that by reason of the failure and refusal of defendants to carry out and perform said contract plaintiff is entitled to recover the difference In value between the respective properties agreed to be exchanged. Plaintiff prayed for judgment that defendant perform said contract with good and sufficient title to the Henderson county land, upon plaintiff executing a good title to said Aurora property, but that if the court decided that plaintiff was not entitled to specific performance, he then prayed for judgment against J. F. Williams individually and as such executor and agent, for one-half undivided interest in said 875.2 acres and abatement of price for that part which defendant Williams could not convey, and that if plaintiff was not entitled to specific performance against any of said defendants, he have judgment for his damages, and such other relief as he was entitled to. Defendant J. F. Williams answered by general demurrer and general denial, and alleged that said contract was procured through the fraud of one W. P. Bryan, who purported to act as his agent, and which fraud was participated in by plaintiff, and further denied that he had authority to represent the other defendants therein. There was a trial by jury, and the court instructed the jury to find the value in December, 1911, of the 875.2 acres, and to find for plaintiff against J. F. Williams individually, and as such executor for an undivided one-half interest in the 875.2 acres, and also for damages, if any, equal to one-half the value of the Henderson county land in December, 1911, less $2,319, and further to find for defendant Williams the title and possession of an undivided one-half interest in said Aurora property subject to mortgage existing against the same. The jury returned a verdict as directed by the court, and awarded plaintiff damages in the sum of $1,181.80. Judgment was entered in accordance with the jury’s verdict, and to the effect that plaintiff recover of defendant personally the said sum of $1,181.80, with interest thereon from date of judgment at the rate of 6 per cent, per annum, together with all costs of suit. From this judgment defendant Williams appealed.

The question, presented in slightly different form by appellant’s several assignments of error, is whether or not the contract between appellant and appellee is divisible in the sense that specific performance thereof can be decreed in part and damages awarded in part as against either party, where that party has not title to all of the land contracted by him to be conveyed? The contract in question was clearly one for the exchange of the respective tracts of land mentioned in it and the execution by plaintiff of his notes representing the excess in value of defendant’s land over the lfiaintiffs, taking the mortgage on plaintiff’s land into consideration. The proposition contended for by appellant is that, “where there is a contract to exchange land and defendant is unable to convey the entire tract which he agreed to convey, plaintiff cannot, by judgment, have specific performance in the way of conveyance of that portion of the contract to which defendant has title, and compensation in the form of the money value for that portion which defendant is unable to convey, because the effect of same would be for the court to make a new contract for the parties, and a different one from that entered into between them, and which no court has authority to do.”

The rule, though not universal, is well established in this and some other jurisdictions that, in a contract for the sale and purchase of land for a money consideration, the vendor whose estate is less than or different from that which he agreed to sell, or who cannot give the exact subject-matter embraced in the contract, will not be allowed to set up his inability as a defense against the demand of the purchaser who is willing to take what he can get with an abatement out of the purchase money for that which the vendor cannot convey. Austin v. Ewell, 25 Tex. Sup. 407; Heirs of Roberts v. Lovejoy, 60 Tex. 253; Watson v. Baker, 71 Tex. 739, 9 S. W. 867; Hazzard v. Morrison, 130 S. W. 244; Lucas v. Scott, 41 Ohio St. 640; 1 Story’s Equity Jurisprudence, § 799; 26 Am. & Eng. Enc. Law (2d Ed.) pp. 83-85-87; Waterman on Specific Performance of Contracts, § 499.

In cases, however, of which we have knowledge, where the contract provided for an exchange of lands, as in the case at bar, the rule just stated was not applied. These cases do'not seem to be numerous, but those to which our attention has been called clearly and emphatically declare, in effect, as we understand them, that where the agreement is for an exchange of lands, to compel a specific performance thfereof as to that portion of the land to which the defendant has title, and to render a money judgment against him for the value of that portion which he is unable to convey, would require the performance of a contract which the defendant did not make. The facts in the case of Sternberger v. McGovern, 56 N. Y. 12, were somewhat similar to those in the instant case. They were, in substance, as stated in appellant’s brief, that the parties entered into a written contract by which plaintiff agreed to sell and convey to defendants certain premises for $125,000, payable, $20,000 by defendants assuming two mortgages to that amount thereon, $64,000 'by a deed of certain premises owned by defendant, and the balance by bond and mortgage. Defendant agreed to sell to plaintiff said premises owned by him for $82,500, payable, $18,000 by plaintiffs assuming a mortgage for that amount and the balance by deed of the premises first mentioned. Defendant failed to perform because his wife would not join in the deed. The court held that the contract was one to exchange lands, with a provision for adjusting the excess in value; that plaintiffs were not entitled to a specific performance of the contract so far as defendant was enabled to perform with an allowance for the value of inchoate right of dower belonging to the wife of defendant, nor could the defendant, since he was unable to give a good title on his part, be compelled to take title and to pay plaintiffs for their property the contract price in cash. It appears from the court’s opinion that counsel for the plaintiffs therein cited the court to authorities holding that where the contract was to sell land for a money consideration, the plaintiff was entitled to have the contract specifically performed as far as the defendant could perform it, and to have an abatement out of the purchase money or compensation for any deficiency in the title, etc.; but the court, in distinguishing such cases from the case it had under consideration, said: “Here the parties have agreed to exchange, in substance, one parcel of real estate for another, and for the payment by the defendant to the plaintiffs of the estimated excess in value of their parcels, by giving a general mortgage thereon, payable in the future; the value placed upon each parcel not being its estimated cash value, but its relative value with the other parcels; no cash payment by either. Under such a contract, to require the defendant to convey his property to the plaintiffs and pay such compensation as the court should determine its market value was impaired by the outstanding inchoate right of ■dower, or such sum at the real value of such right ascertained by the tables of mortality, ■would be harsh and oppressive. The defendant never made a contract to do this. To ■charge him with the difference in the market value would be unjust, as it is obvious that this incumbrance upon the title would impair that to a much greater extent than the real value of the right. To compel, him in •effect, to purchase the right by paying the plaintiff therefor its value, determined by the table of survivorship and mortality, would in a case. like this, be unjust. He, as we have seen, contracted for an exchange of his property for that of the plaintiff; under such a contract he ought not to be compelled to take the risk of the loss which the application of those tables to this particular case might subject him. * * * My conclusion, .therefore, is * * * that the plaintiffs were not entitled to the specific performance of the contract, or any part of it. The plaintiffs must resort to their legal remedy, for the damages, if any, that they have sustained from the defendant’s breach of the contract.”

The same doctrine is enunciated and applied in the case of Saberski v. Velosky (Sup.) 11 N. Y. Supp. 668. In this case the plaintiff and defendant agreed in writing to an exchange of certain lands owned by them respectively. The property of the defendant was described as being 25 feet wide, but in fact it was only 24 feet wide. The plaintiff brought suit for specific performance and compensation for the deficiency of one foot. The court, in holding that plaintiff was not entitled to a specific performance, but that that he must rely on his remedy for damages, remarked: “The reason of the rule is that a decree would, in substance, call upon the party to perform a contract which he did not make. In the case at bar the agreement was for an exchange, the values and money to be paid, specifically fixed, for the barter. To compel the defendants to make compensation in money would, for them, create an obligation they have never assumed, nor intended to assume.” Olson v. Lovell, 91 Cal. 506, 27 Pac. 765, a case decided by the Supreme Court of California, seems to be very much in point. In that case plaintiff Olson entered into a written contract with defendant, C. A. Lovell, and one P. E. Judson, by which plaintiff was to convey to defendant and Judson a tract of land in Placer county, and pay them $1,750, and defendant and Judson were to convey to plaintiff a certain lot in Sacramento, the contract being signed by plaintiff and defendant, but not by Judson, whose name was signed to the contract by defendant in this manner, “F. E. Judson, by C. A. L.” Plaintiff tendered to defendant, Lovell, $875, being one-half of said $1,750, and to convey to him one-half of the Placer county land, and demanded of defendant that he convey to plaintiff his undivided half of the Sacramento land, but defendant declined to accept the offer of plaintiff, and refused to execute such deed, and on the trial plaintiff prayed that defendant be adjudged to convey to plaintiff said undivided one-half of said lot in Sacramento upon the payment by plaintiff to him of said $875, and his execution of deed to one-half of the Placer county land. There was a demurrer filed by plaintiff, which was sustained, and judgment rendered for defendant, Lovell. The court affirmed this judgment, and in doing so, among other things, said: “To compel defendant to convey an undivided half of the Sacramento lot would be to force him to perform a contract which he never made, or intended to make. He did not contract to convey his half of the lot, thus making plaintiff and Judson cotenants thereof, or to take in exchange an undivided half of the Placer county land, and half of the $1,750, thus becoming a tenant in common with plaintiff. The contract upon its face clearly means that defendant and Judson were to convey the whole of their land in exchange for the whole of plaintiff’s land, together with the whole of a certain, named sum of' money; and, if such contract cannot be specifically enforced as written, then it cannot be so enforced at all. We think, therefore, that the demurrer was properly sustained.” To the same effect, in principle, is the case of Jackson v. Torrence, 83 Gal. 521, 23 Pac. 695.

- As further illustrating the principle and well-settled doctrine that courts, in suits of this character, cannot and will not undertake to make or force the performance of a contract which a party has not himself made, may be cited' the following authorities: Lone Star Salt Co. v. Texas Short Line Ry. Co., 99 Tex. 434, 90 S. W. 863, 3 L. R. A. (N. S.) 828; Galbreath v. Reeves, 82 Tex. 357, 18 S. W. 696; Blanchard v. Railway Co., 31 Mich. 52, 18 Am. Rep. 142. In the first case here cited it is said: “It is true, as contended by counsel for plaintiff, that in decreeing specific performance a court should, if necessary, determine 'by construction the legal effect of the agreement to be enforced, and enforce it according to its true meaning and intent; but it is not competent for the court to add to the contract a promise which the party has not made.” In support of this declaration of our Supreme Court, the case of Blanchard v. Railway Company, supra, is cited; and in that case the Supreme Court of Michigan, in discussing the subject of specific performance 'of contracts, uses the following language: “As the court does not make contracts for parties, so it never undertakes to supply material ingredients which they omit to mention, and which cannot be legitimately considered as having been within their mutual contemplation. And where the party to perform is left by the agreement with an absolute discretion respecting material and substantial details, and these are therefore indeterminate and unincorporated until by his election they are developed, identified, and fixed as constituents of the transaction, the court cannot substitute its own discretion, and so by its own act perfect and round out the contract. If the court were to do this, it would be to assume a right not belonging to it, but one which the parties reserve to themselves.”

In the case of Galbreath v. Reeves, supra, it was held that where one of the parties to an unexecuted contract for the exchange of lands failed to execute the agreement on his part, and the other party refused to complete the contract or to accept a substitute for the failure and offered and demanded a cancellation of the contract, it becomes the duty of the court to administer that relief. The court said: “The plaintiff had no right to demand a specific performance by Reeves of his part of the contract without at the same time discharging his own. He could not demand of Reeves that he should accept something not consented to by him as a substitute and pro^ ceed to execute the contract in other respects. And no more could the court add to the contract a circumstance not within the agreement of the parties, and compel its performance as changed by the court.”

The record in the case before us discloses that the exchange trade as made by the parties was to the effect that appellant, Williams, should convey to plaintiff the 875.2 acres of land situated in Henderson county; and the appellee, Pearman, should convey to said Williams a one-half interest in the property situated in Aurora, Mo., Williams to assume one-half of a $6,000 mortgage on the Aurora property, and appellee, in the event the 40 acres could be conveyed by Williams, to execute his notes to appellant for $2,319. The judgment rendered not only divested title out of appellant to one-half interest in the 875.2 acres of land, but went further and gave a personal judgment against him in favor of appellee for $1,181.80, and ordered execution to issue therefor. It is manifest, we think, from the record, that neither the appellant nor appellee intended or contemplated when the contract upon which this suit is based was made, appellant should or would be called upon to pay any money. It was error, therefore, for the court, by instructions to the jury and by the judgment based on their verdict, to declare and adjudge appellee entitled to a specific performance in part of the contract sought to be enT forced, and to damages in an amount equal to one-half of the value of the Henderson county land, less $2,319, the amount , of the notes appellee was to execute and deliver to appellant as stipulated in the contract. This was requiring appellant to perform a contract which he never made; and this the court was not authorized to do. The contract being one for the exchange of lands, it is not divisible in the sense that specific performance can be decreed in part and damages awarded in part. This being true, appellee should have been confined in the trial of this case to his action for damages, the measure, of which it seems would be the difference between the market value of the two tracts of land in question, taking into consideration the mortgage which appellant, by the terms of the contract, agreed to assume and the notes which appellee agreed to give.

The judgment is therefore reversed, and the cause remanded, to be tried in accordance with the views expressed in this opinion.

Reversed and remanded.


author: MOURSUND, J.

text:
    JAMES et al. v. JAMES et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 18, 1914.
    Rehearing Denied March 11, 1914.)
    1. Wilis (jj 497) — Time Estate Vests.
    Under a will devising property to the children of testatrix’s child, only the children in being or en ventre sa mere at the time of testatrix’s death would take under the will.
    [Ed. Note. — Eor other cases, see Wills, Cent. Dig. §§ 1080-1086; Dec. Dig. § 497.]
    2. Judgment (§ 704) — Conclusiveness—Adverse PARTIES.
    In view of the powers given to a next friend by Rev. St. 1911, arts. 2167 and 2168, permitting him to make compromises, etc., the rights of infant plaintiffs, represented by the same next friend in partition proceedings, could not be determined therein as between themselves; the next friend not having the right to determine their rights inter se, and admissions made by defendants not affecting plaintiffs’ rights as between themselves.
    l[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 1229; Dec. Dig. § 704.]
    3. Partition (§ 34) — Procedure.
    Under the direct provisions of Rev. St. 1911, art. 6122, the procedure prescribed by statute for partition does not preclude partition being made in any other manner authorized by the rules of equity.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 88, 90; Dec. Dig. § 34.]
    4. Partition (§ 78) — Joint Partition.
    It is the court’s duty to set apart plaintiffs’ interest to them jointly in partition proceedings if they desire it.
    [Ed. Note. — For other cases, see Partition, Cent. Dig. §§ 265-273; Dec. Dig. § 78.]
    Appeal from District ■ Court, Bexar County; R. .H. Ward, Judge.
    Action by Evelyn James and another against Hugh S. James and others. From a judgment for defendants, plaintiffs appeal.
    Reformed and affirmed.
    John Sehorn and Engelking & James, all of San Antonio, for appellants.

      For other oases see same topic and sectioD NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rfep’r Indexes.

   MOURSUND, J.

Annie James died testate on February 27, 1901. Her will contained the following clause: “I desire that all my property of every kind be divided in equal shares to my children excepting Scott H. James, his share to go to his children — he receiving nothing.” At the time Annie James died, her son, Scott H. James, had four children, viz., Evelyn, Hugh S., Alfred H„ and Edgar X., but thereafter three others were born, Mary Josephine, born June 9, 1901; Ralph Y., born July 6, 1904; and Fannie Belle, born in 1907. On June 6, 1905, in a suit in the district court of Bexar county, Forty-Fifth district, entitled Evelyn James et al. v. John H. James et al., being a partition suit among the devisees of Annie James, deceased, the plaintiffs therein were Evelyn James, Hugh S. James, Alfred H. James, Edgar Y. James, Mary Josephine James, and Ralph Y. James, and the defendants were the other devisees named in the will of Annie James, and in said suit there was set apart to the plaintiffs by the judgment of the co.urt on June 6, 1905, the northern part of survey 49, Grantee A. Stafford, situated in Bexar county, containing 458 acres, more or less. On May 21, 1913, Evelyn James filed this suit against her brothers and sisters above named, and against Josephine Y. James as guardian of the persons and estates of all of them except Fannie Belle James, for the purpose of securing a construction of said will and determining her interest and the interests of her brothers and sisters in the land above described. The court appointed Josephine Y. James guardian ad litem of the minor, Fannie Belle James. Judgment was rendered that Fannie Belle James has no Interest in the said land, and that same is owned by the other children of Scott H. James. Evelyn James and Fannie Belle James appealed.

Evelyn James contends that Ralph Y. James is not entitled to any interest in said land because he was born long after the death of Annie James. Fannie Belle James contends that under the will of Annie James she is entitled to an interest in the land because she is one of the children of Scott H. James. The trial court correctly held that Ralph Y. and Fannie Belle James took no interest under the will. As no period was mentioned by the testatrix for the vesting of the devise to Scott H. James’ children, the same vested at the death of the testatrix, and only the children in being at tiie time of her death were included in the devise to Scott H. James’ children as a class, but a child en ventre sa mere is included among those in being, and therefore Mary Josephine James took under the will. Underhill on Wills, §§ 553 and 567; Thornton v. Zea, 22 Tex. Civ. App. 509, 55 S. W. 798.

The court held that, while' Ralph Y. James did not take under the will, he became entitled to an interest in the land by virtue of the. judgment in the partition suit. It appears that said judgment vested the 458 acres in the plaintiffs in said suit, naming them. It does not appear that the interest of each plaintiff was determined as against the other plaintiffs, nor- were the pleadings introduced to show whether or not the rights of the plaintiffs as between themselves were put in issue. It is certainly not to be presumed that such is the case; they being minors represented in the suit by the-same next friend, who brought the suit in their behalf making them coplaintiffs. Their next friend has no right to determine their rights as between one another, nor can any admissions made by the defendants affect the plaintiffs’ rights as between one another. The fact of their joining in a petition as co-plaintiffs, when such act is done by a next friend, cannot constitute even an admission' that all are entitled to share in the land. “Parties to a judgment are not bound, by it in a subsequent controversy between each other, unless they were adversary parties in the original cause of action.” Ereeman on Judgments, § 158. See, also, Van Fleet’s Former Adjudication, p. 569; G., C. & S. F. Ry. v. G., H. & S. A. Ry., 83 Tex. 509, 18 S. W. 956; Sandoval v. Rosser, 26 S. W. 932. “This rule is subject to an exception when, in the cause of litigation, coplaintiffs or co-defendants do in fact, though not in form, occupy the attitude of adversaries.” Comstock v. Keating, 115 Mo. App. 378, 91 S. W. 418; Koelsch v. Mixer, 52 Ohio St. 207, 39 N. E. 417. When that takes place, they come under the general rule with regard to conclusiveness of prior adjudications as laid down in the case of Moore v. Snowball, 98 Tex. 24, 81 S. W. 5, 66 L. R. A. 745, 107 Am. St. Rep. 596. Were this an ordinary case, it could be said without hesitation the plaintiffs were not and could not have been adversaries. Our statutes which permit the bringing of suits by persons as next friend of minors confer powers which cannot be consistently exercised by a person who undertakes to represent minors whose interests are adverse to each other. He cannot agree and compromise with himself, and the court would not permit minors to litigate with one another, all having the same next friend, hut would promptly see that each of such minors was represented by a person who could and would look after the interests of such minor alone. See articles 2167 and 2168, Revised Statutes of 1911. Nor do we think that the fact that the judgment was rendered in a partition suit changes the rule.

True, article 6100 of our statutes provides that in partition suits brought under the statute the court shall determine: (1) The share or interest of each of the joint owners or claimants in the real estate sought to be divided; (2) all questions of law or equity affecting the title to such real estate, or any part thereof which may arise. But our courts need not follow the procedure prescribed by statute, and may partition in any other manner authorized by the rules of equity. Article 6122, Revised Statutes of 1911; Moore v. Blagge, 91 Tex. 162, 38 S. W. 979, 41 S. W. 465; Kalteyer v. Wipff, 92 Tex. 682, 52 S. W. 63; Gutheridge v. Gutheridge, 161 S. W. 895. It is frequently the case that, in partition suits, a group of litigants who are jointly entitled to a certain share of property do not wish a partition between themselves, but merely ask that they jointly be awarded a certain share. If denied such right, and compelled to partition as between themselves, the shares might be so small as to be practically valueless. If parties desire their interests to be set apart to them jointly, the court not only has the power, but it is a duty, to accede to their request. Kremer v. Haynie, 67 Tex. 450, 3 S. W. 676; Gorman v. Campbell, 135 S. W. 177. It has been held that a petition is sufficient which shows that the parties plaintiff and defendant are entitled to the entire estate, and that it need not allege the specific shares of the defendants. Glasscock v. Hughes, 55 Tex. 461; Maverick v. Burney, 88 Tex. 560, 32 S. W. 512.

We think it is clear that even in a partition suit such liberality of .pleading is permitted and such power to enter judgments based upon and appropriate to the relief sought is held by the courts that no inference arises from the character of the suit that the pleadings required an investigation of the plaintiffs’ rights against each other in said suit, or that the court in fact made such an investigation and determined such rights. No pleadings were introduced showing any issues made, which would require such adjudication, and the decree gave them jointly a certain tract of land, without specifying what interest each acquired therein. In addition, as has already been shown, the parties were all minors represented by the same next friend, and therefore not so represented as to have their rights against one another properly determined. The facts in the case of Gurley v. Hanrick’s Heirs, 139 S. W. 725-728, are very different from those in this case. In that case the two defendants in a partition suit filed • separate answers, and under the prayer of one of them at least it became necessary for the court to determine his rights as against the other defendant, and in fact against all other .parties to the suit.

We conclude that the decree in the partition suit was not an adjudication of the rights of the minors as against each other, and that Ralph X. James cannot hold title to an interest in the'land, hereinbefore mentioned, by virtue of said decree.

The judgment is therefore reversed, and judgment rendered that both Ralph X. James and Fannie Belle James have no interest in said land, and that the title thereto be decreed to be in Evelyn James, Hugh S. James, Alfred H. James, Edgar X. James, and Mary Josephine James.

Judgment reformed and affirmed.


author: JENKINS, J.

text:
    STATE et al. v. DAYTON LUMBER CO. et al.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1914.)
    1. Appeal and Error (§ 1119) — Parties — Persons Affected.
    A writ of error complaining of error in rendering judgment for defendants in error did not bring the case up as to those defendants who disclaimed, or as to whom plaintiffs in error dismissed, who are not complaining of the judgment, and whose title to the land in controversy was not connected with the title of defendants in error, where it does not appear that defendants in error upon another trial would be entitled to a judgment against any of the other defendants, or that any judgment on retrial might be less onerous on the defendants in error if the other defendants were continued as parties.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3294, 3295, 4415, 4416; Dee. Dig. § 1119.]
    2. Appeal and Eebob (§ 1173) — Disposition AS TO PARTIES NOT APPEALING.
    Notwithstanding Rev. St. 1911, art. 1997, providing that there shall be but one final judgment in any cause, except where otherwise provided by law, where, in trespass to try title, there are several defendants whose defenses are severable, the judgment against nonappealing defendants will be affirmed, though the judgment in favor of other defendants is reversed on plaintiffs’ appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. § 1173.]
    3. Statutes (§ 212) — Pbesumption in Enactment.
    Where the Legislature does not change a statute in enacting the Revised Statutes, it is presumed that it acquiesced in the construction of the statute by existing decisions of the appellate courts.
    i[Ed. Note. — For other cases, see Statutes, Cent. Dig. § 289; Dec. Dig. § 212.]
    4. Appeal and Ereob (§§ 361, 376) — Writ op Ebbor — Ebboe.
    The petition for a writ of error must state the names of the parties adversely interested in the judgment, and such parties must be made obligees in the bond.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 1941-1959, 2011-2016; Dec. Dig. §§ 361, 376.]
    Error to District Court, Travis County; Geo. Calhoun, Judge.
    Action by the State of Texas and others against the Dayton Lumber Company and others. On motion to dismiss writ of error sued out by plaintiffs.
    Motion overruled.
    B. F. Looney, Atty. Gen., G. B. Smedley, Asst. Atty. Gen., L. R. Bryan and L. B. Moody, both of Houston, N. A. Rector, and John W. Maddox, both of Austin, and Duval West, of San Antonio, for plaintiffs in error. Stevens & Stevens of Liberty, A.' D. Stone, of Temple, Spell & Sanford, of Waco, Gregory, Batts & Brooks, of Austin, and Spann & Spann, of Temple, for defendants in error.

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

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

   JENKINS, J.

On January 29, 1913, we reversed and remanded this cause to the district court of Travis county, with instructions to transfer the same to the district court of Liberty county for trial, for the reason that the trial court erred in overruling the plea of privilege to be sued in Liberty county, filed by the defendants in error herein. 159 S. W. 391. On October 30, 1912, we had reversed the judgment of the court below, and rendered judgment for the plaintiffs in error. A great number of motions were filed in the ease, among which was the motion of defendants in error to dismiss the writ of error for want of necessary parties in the petition and in the writ of error bond. This motion was filed December 11, 1912, and was overlooked by us, and no action was taken thereon. At the close of the term we entered an order, whereby all undisposed-of motions were carried over to the next term. Our attention has been called to this motion, and defendants in error have filed a supplemental motion to dismiss the writ of error for the same reasons set forth in the original motion. By reason of these facts the case is still pending in this court.

The only facts necessary to be considered in passing upon this motion are these: The plaintiffs in error brought suit of trespass to try title against the defendants in error and a number of other parties. As to such other parties the plaintiffs in error dismissed their suit against a number of them; took judgment upon disclaimer against some of them, and judgment by default against the remainder of them. None of these parties filed any plea of privilege; the court had jurisdiction of the subject-matter, and therefore had jurisdiction to render final judgment against them. None of them excepted to the judgment of the court, and none of them gave notice of appeal. Neither the plaintiffs in error nor the defendants in error objected to said judgments. No judgment for costs was rendered against either of said parties, and plaintiffs in error have paid all costs incurred in the court below.

After the judgments dismissing the case as to some of the defendants in the trial court, and by disclaimer and default against the others, as above stated, the case proceeded to trial upon its merits as between the plaintiffs in error and the defendants in error herein, and judgment was rendered in favor of the defendants in error for the land in controversy. From that judgment, the plaintiffs in error gave notice of appeal, and subsequently sued out the writ of error herein, naming in their petition all the defendants in the court below in whose favor judgment was rendered, and making all of them obli-gees in the'writ of error bond, but not naming in said petition or bond any of the parties who had been dismissed from the suit, or against whom judgment upon disclaimer or by default had been rendered.

In reversing and remanding this case, as above stated, it was not our purpose to disturb the judgment of the trial cdurt as to the parties against whom the case was dismissed, or against whom judgment upon disclaimer or by default was rendered. No one was complaining of those judgments, and they were not before us for revision. Bringing this case to this court by writ of error, by reason of errors complained of as having been committed by the trial court in rendering judgment in favor of defendants in error, did not bring it here as to those who were not complaining, and whose title to the land, if any they had, does not appear to have been in any wise connected with the alleged title of defendants in error, and, it not appearing that the title of defendants in error was in any wise connected with, or depended upon, the title oí such other defendants, or any of them, nor that the defendants in error upon another tri'al could be entitled to a judgment of any character over against such other defendants, or either of them, nor that any judgment that might be rendered upon another trial might be less onerous on defendants in error, if such other parties were continued as parties to this suit.

It is true that the statute provides that there shall be but one final judgment rendered in any cause, except where it is otherwise provided by law (R. S. art. 1997); and in Danner v. Walker-Smith, 154 S. W. 302, we reversed the case as to all of the joint obligors on the bond sued on, for the reason that one of such parties was entitled to such reversal, and all of said parties had .appealed. But we further said: “It seems to be the general practice in the courts of civil appeals in this state, where the cause of action is severable, and some of the parties have not appealed, to affirm the judgment as against the parties not appealing. * * * The judgment as to them will be treated as a voluntary severance, and affirmed; the parties appealing not complaining of the judgment as against said parties.”

This, we think, is the correct practice in suits of trespass to try title, where there are several defendants, and their defenses are severable. It had been so held by the Supreme Court of this state prior to the enactment of the Revised Statutes of 1911, which is a re-enactment of the former statute on this subject (R. S. 1895, art. 1337). Boone v. Hulsey, 71 Tex. 183-185, 9 S. W. 531, and cases there cited. The Legislature is presumed to have known of these decisions, and, by not changing the statute in enacting the present revised statutes, to have acquiesced in such construction.

The petition for a writ of error must state the names of the parties adversely interested, and such parties must be made obligees in the bond. In the instant case the only parties adversely interested were the defendants in error. They only were benefited by the judgment of the court below, and they only had an interest in maintaining said judgment, the reversal of which was sought by plaintiffs in error so far as it pertained to them, and no further. When this case is tried in Liberty county, in accordance with our decision herein, the defendants in error will be the only defendants, unless others shall be made parties by amendment.

In support of their contention defendants in error cite the case of Ferguson v. Land & Building Co., 154 S. W. 303. In that case the writ of error was dismissed because Wood, Hargrove & Strange were not made parties defendant in the petition for writ of error, nor obligees in the bond. This was held to be necessary, not because they were 'defendants in the court below, but because-they were interested adversely to Eerguson in upholding the judgment which Ferguson was seeking upon his writ of error to reverse. In the court below the Empire Life Insurance Company was also a party defendant, and Eerguson obtained a judgment against it for $928.22. The insurance company did not appeal from this judgment,, and Ferguson did not seek to have it reversed on writ of error. There was no contention that the insurance company was a necessary party to the writ of error. An-analysis of the other cases cited by defendants in error will show that they do not support their contention.

For the reasons stated, the motion to dismiss the writ of error is overruled.

Motion overruled.


author: HENDRICKS, J.

text:
    ROARING SPRINGS TOWNSITE CO. v. PADUCAH TELEPHONE CO.
    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 31, 1914.
    On Motion for Rehearing, March 7, 1914.)
    1. Telegraphs and Telephones (§ 10s) — Right to Construct Lines.
    Rev. St. 1911, art. 1231, authorizes telegraph corporations to set their poles, etc., in the public streets so as not to interfere with their use. Article 1232 provides that such corporations may obtain a right of way and condemn lands for the use of the corporation as provided in case of railway corporations. Article 1235 permits the authorities of any city, etc., to specify where the telegraph posts shall be located, the height of the wires, etc. Held, that a reservation in the dedication deed of a townsite company, retaining power to grant to any telephone company the right to construct its lines over and across any streets, is void.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 6; Dec. Dig. § 10.]
    2. Injunction (§ 118) — Allegations of Petition — Conclusion.
    An allegation of the petition, in a suit to enjoin a telephone company from maintaining its lines in the street, that the manner of constructing the jDoles interfered with the sidewalks and curbing is a conclusion upon which an injunction should not be granted.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 223-242; Dec. Dig. § 118.]
    3. Eminent Domain (§ 274) — Proceedings— Enjoining Pboceedings.
    Condemnation proceedings may be enjoined, if there is no right to condemn for the proposed purpose, and the right to condemn cannot be litigated in the proceedings themselves.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 753, 765-768; Dec. Dig. § 274.]
    4. Municipal Coepoeations (§ 663) — StReets — Ownership op Fee.
    The owner of property abutting on a public street or highway owns the fee to the center thereof, unless the grant otherwise provides.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1438-1440; Dec. Dig. § 663.]

      5. CORPORATIONS (§ 29) — De Facto Corporations — Powers.
    As against all persons except the state, a de facto corporation has the same powers, and is subject to the same obligations, as a corporation de jure.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 77-79, 2504; Dec. Dig. § 29.]
    6. Corporations (§ 28) — “De Facto Corporation.”
    The requisites of a “de facto corporation’.’ incorporated under a general law are the existence of a law under which a corporation with the powers assumed might lawfully be created, a bona fide effort to incorjiorate thereunder, and an actual user of the rights claimed to be conferred by such law.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 26, 70; Dec. Dig. § 28.

    For other definitions, see Words and Phrases, vol. 2, pp. 1841-1843.]
    7. Corporations (§ 32) — Presumptions as to Existence.
    In a suit to enjoin a telephone company from using the streets for its line, it will be presumed, in absence of contrary allegations in the petition, that it had attempted in good faith to incorporate under the law, and actually exercised its franchise thereunder; these elements of a de facto corporation being presumed.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 106-118, 2086, 2087; Dec. Dig. § 32. 1
    8.Telegraphs and Telephones (§ 5) — De Facto Corporations — Powers.
    A de facto corporation is considered such corporation for all purposes, including that of constructing a telephone line upon and across any street, which right is given to telegraph corporations by Rev. St. 1911, art. 1231.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 3, 4; Dec. Dig. § 5.]
    9.Eminent Domain (§ 10) — De Facto Corporations — Powers.
    A de facto corporation may exercise the power of eminent domain.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 35-48; Dec. Dig. § 10.]
    On Motion for Rehearing.
    10. Eminent Domain (§ Í19) — ‘Streets — Telephone Lines — Additional Servitude.
    The erection of telephone poles and wires along a public street or highway does not impose any additional servitude upon the highway, so as to require a telephone company to condemn the land of the street for that purpose.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 304-314; Dec. Dig. § 119.1
    11. Dedication (§ 53) — Operation—Streets.'
    When the owner plats property for the purpose of creating a new town, and dedicates the streets, they are as much a part of the public highways for all purposes as if condemned and paid for by the public.
    [Ed. Note. — For other cases, see Dedication, Cent. Dig. § 96; Dec Dig. § 53.]
    Appeal from District Court, Cottle County; Jo. A. P. Dickson, Judge.
    Suit by the Roaring Springs Townsite Company against the Paducah Telephone Company. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    Fires, Decker & Clarke, of Quanah, for appellant. T. T. Bouldin, of Matador, for appellee.

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

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

   HENDRICKS, J.

The appellant, the Roaring Springs Townsite Company, a corporation, presented its petition for injunction, and for restraining order, against the Padu-cah Telephone Company to the judge of the Fiftieth Judicial District of Texas, and injunction was refused on preliminary hearing upon consideration of the petition, without an answer or evidence. A résumé of appellant’s petition for the purpose of clarifying the assertion of issues which, it is asserted, govern the right to the injunction, it is sufficient to state that the townsite company was the owner of a section of land in Motley county, and had caused about 160 acres of same near the center of the section to be platted and marked upon the ground into lots, blocks, streets, and alleys, and had filed with the clerk of the county court of Motley county a record of said plat, designating the lots, blocks, streets, and alleys of said town-site company, together with a deed dedicating to public use the said streets and alleys, with the following reservation: “It is especially stipulated and the right is reserved in the Roaring Springs Townsite Company in and to all streets and alleys in said town to grant and convey to any' person, persons, corporation, or corporations, the right to construct in, along, over, and across any of the streets and alleys of said town, telephone and telegraph lines, electric light wires and poles to sustain same, * * * and no person or corporation other than the ones designated in writing by the Roaring Springs Townsite Company shall have the right or power to use said streets and alleys for telegraph or telephone purposes.” The appellant says that it “had, at a large expense, procured the construction of the Quanah, Acme & Pacific Railway Company across said lands and the opening of a station known as Roaring Springs”; that on June 19, 1913, it began the sale of lots in the platted part of the townsite, and purchasers had begun the erection of business houses and residences thereon, but that a greater part of the lots and blocks remain unsold, and are the property of appellant; that it has not expanded sufficient to incorporate into a municipality; that on July 15, 1913, the Paducah Telephone Company, through its agents, over the protest of the plaintiff, began placing poles upon the unplatted part of the lands of the town-site company, and also on the streets of the platted part of said townsite company, and stringing wires upon said poles at such places, and refused to pay appellant anything for the use of the streets.

The appellant avers that the reservation in the deed of dedication previously quoted by us was not inserted with the intention of creating a monopoly in the telephone service of the town of Roaring Springs, and tenders in its petition the right to construct and operate a telephone line and exchange over and across the streets and alleys at convenient places, as not to incommode the public in the use of the same, “and upon the payment to plaintiff of a reasonable compensation for said right, privilege, and franchise.” It further alleges that it is attempting to build a town in accordance with modern conveniences, and that in furtherance of such purpose it has procured an agreement with the Southwestern Telephone & Telegraph Company for the installation at an early date of a central station and exchange in said town, which company, it states, is much more enlarged in its facilities for telephone communications in the state of Texas, and outside of the state, and that the ap-pellee only attempts to furnish long-distance connections in four counties of the state, and that its service is inferior to the service of the other company. Appellant specifically ■ alleges that it “desires that telephone poles only be placed on and along the alleys of said town, and in platting said town arranged the alleys so that they could be used for this purpose, but that defendant is placing its poles in, along, and upon the streets of said town, and that the same are unsightly, tend to lessen 'the free use of the street by the public, and interfere with the sidewalks and curbing to be placed and now being placed in, along, and upon said streets.”

The appellant further alleges an attempted procedure of condemnation of the right of way by the telephone company in the county court of Motley county, and a resistance on its part (the townsite company) in said county court, by pleadings and objections filed in said suit, alleging in such pleadings that the telephone company does not sufficiently describe the right of way; that it had procured a restraining order and injunction in the district court against said telephone company, in another proceeding, from further building, constructing, and operating a telephone line upon the land of petitioner as described in the application for condemnation of the Paducah Telephone Company; that the telephone company was improperly incorporated, and was not entitled to the right of condemnation. The condemnation suit was for the acquisition, as we understand the pleadings, of that portion of the town-site company’s property not specifically platted into blocks, lots, streets, and alleys.

Appellant alleges the same proposition here as in the condemnation suit, that appellee is not empowered to exercise the right of eminent domain, for the reason that its attempted articles of incorporation only authorized it to operate telephone lines and exchanges ; the laws of Texas authorizing corporations of this character for the construction and maintenance only of a telegraph and telephone line.

The following has been the statutory law of this state for many years with reference to telegraph companies: “Corporations created for the purpose of constructing and maintaining magnetic telegraph lines, are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this state in such manner as not to incommode the public in the use of such roads, streets and waters.” Article 1231, R. S. 1911. It is also provided by article 1232, immediately following the article quoted, that such corporations “may proceed to obtain the right of way and to condemn lands for the use of the corporation in the manner provided by law in the case of railway corporations.” i

The Supreme Court of this state held, in the case of San Antonio & A. P. Ry. Co. v. Southwestern Telegraph & Telephone Company, 93 Tex. 313, 55 S. W. 117, 49 L. R. A. 459, 77 Am. St. Rep. 884, construing the previous articles, taken in connection with the act of 1891 (Acts 22d Leg. c. 101), which provided for the creation of corporations for “the construction and maintenance of a telegraph and telephone line,” that said acts embraced telephone companies, and that such companies enjoy the same right of eminent domain in condemnation proceedings as telegraph companies. ..... •••— ¡,

Article 1235 of the same chapter of the two previous articles quoted provides that: “The corporate authorities of any city, town or village through which the line of any telegraph corporation is to pass may, by ordinance or otherwise, specify where the posts, piers or abutments shall be located, the kind of posts that shall be used, the height at which the wires shall be run; and such companies shall be governed by the regulations thus prescribed,” etc.

In the ease of the City of Brownwood v. Brown Telegraph & Telephone Company (Sup.) 157 S. W. 1165, the Supreme Court declared, in construing the three articles quoted by us: “It' is apparent that the right of the telephone company to pass through the city or town, over and upon its streets, is absolute, and a city has no authority to deny that right. The interest of the public in convenient service by such means of communication is the basis of the grant, and is superior to any private interest.” However, by virtue of article 1235, last quoted, the use by the corporation of the streets may be controlled by the city by a reasonable exercise of the power, and said city may “enforce any reasonable regulations as to the use of the streets by the city, but such city cannot use its power to regulate in such manner as to deny the corporation the right to pass through the town, and in so doing to use the streets in ‘such way as not to incommode the public.’ ” The Supreme Court in that case further held that “the city had no authority to require the telephone company, to accept its ordinances as a condition precedent to entering the city.”

The Court of Civil Appeals of the Second District, in the case of City of Texarkana v. S. W. Telegraph & Telephone Co., 48 Tex. Civ. App. 16, 106 S. W. 915, also held that the article first quoted (1231) is exclusive as to the foundation of the right, given by the state, to corporations of this character as to the use of the public highways, subject to a reasonable regulation of a municipality when a telephone line is constructed over its streets; hence, by virtue of the statute, construed by the decisions, if the Paducah Telephone Company comes within the purview of the incorporation acts for the purpose of constructing and maintaining a telephone line, the reservation in the dedication deed of the Roaring Springs Townsite Company, attempting to retain the power to grant to such a corporation the right to construct “over and across any of the streets * * * of said town, a telephone or telegraph line,” is void—and we are not concerned in this cause with the proposition considerably debated, affirmatively and negatively, that such a reservation, if used by the grantor to the extent of the power attempted to be reserved, is a monopoly; neither does the case of Railway Co. v. Dunham, 39 Tex. Civ. App. 575, 88 S. W. 849, have to be considered.

When the townsite company filed its map, and executed and recorded its deed of dedication, to the public of the streets of said town, such dedication was subject to the statute previously quoted; the streets became public streets of the state, and were not required to be condemned, or paid for, by such corporations for the use of said highways, if used in such a manner as not to incommode the public, and subject to a reasonable regulation of a municipality as to such use.

A municipality could not arbitrarily prevent the use—the state has granted that because it is a public highway—neither could a townsite company reserve the right to grant the use when it dedicated such public highway.

Under the law, a townsite company, or any other owner of the land, after the dedication of its streets as a public highway, would not have the right to tender “the use of the streets upon the payment of a reasonable compensation”; the state condemned the streets when the dedication was made as public highways, and tenders the same to the telephone company, subject to the limitations stated.

Again, if this is a corporation within the purview of the statutes, we are unable to conceive what the townsite company has to do with the use of the streets any more than a stranger, unless injured in some manner by the telephone company, as shown in the cause of Southwestern Telegraph & Telephone Company v. Smithdeal, 103 Tex. 131, 124 S. W. 627, same case, 104 Tex. 258, 136 S. W. 1049; the right of abatement as a public nuisance of the fixtures of the telephone company is not shown, nor is there a sufficient complaint of a deprivation of, or a damage to, its private property, safeguarded by the Constitution, sufficient for the interposition of a court of equity. There is a conclusion pleaded that the manner of the construction of the poles of the company is an interference with the sidewalks and curbing now being placed, and to be placed, by said telephone company; but a court of equity should not, however, grant an injunction upon such a conclusion, assuming that a deprivation of, or a damage to, some right of private property is attempted to be shown by the townsite company.

The pleader, probably actuated by ingenuousness in order to candidly present the entire status of the subject-matter of the litigation, alleged the condemnation proceedings in the county court, instituted by the telephone company, for the acquisition of right of way over the unplatted portion of the townsite company’s land. If, however, the purpose is more extended, and is one to obtain by indirection an injunction of such proceedings, it is not permissible if the telephone company is such a corporation as is entitled to the use of the streets granted by the statute.

Lewis on Eminent Domain, vol. 2 (3d Ed.) § 926 (Old Edition, § 646), says: “Condemnation proceedings may be enjoined where, for any reason, there is no right to condemn the property for the purpose proposed, and the right to condemn cannot be litigated in the proceedings themselves. * * * Such a bill will not be entertained where the grounds relied upon are available as a defense in the condemnation proceedings.” While Mr. Lewis, in the same section, states some variations of the rule, and cites some contrary opinions in the notes, we believe, however, the text quoted to be the correct principle. It is also noted that the pleader alleges that the townsite company has previously obtained an injunction, in a different proceeding in the district court against the telephone company, of the condemnation proceedings in the county court, which the latter company failed to respect.

Second. We discuss the more serious question in this case; Is the Paducah Telephone Company, on account of the limited recitations in its charter, such an incorporated company as to be entitled to the advantages of the statute quoted? If not such a corporation, for the purposes of this opinion only, we treat such an association as a trespasser in attempting to construct its telephone poles upon the streets dedicated by the townsite company, and the latter as entitled to the injunction.

The statute gives the privilege only to corporations created for the purpose of constructing and maintaining telephone lines, and, if this is not a corporation, either de jure or de facto, the telephone company has not the right.

“The owner of property abutting on a public highway owns the fee to the center thereof, unless otherwise declared in the grant.” City of Houston v. Finnigan, 85 S. W. 470; Wiess v. Goodhue, 46 Tex. Civ. App. 142, 102 S. W. 793; Cocke v. Texas & New Orleans Ry., 46 Tex. Civ. App. 363, 103 S. W. 407; Bond v. Texas & Pacific Ry. Co., 15 Tex. Civ. App. 281, 39 S. W. 978.

We excerpt the following from appellant’s petition, as a part of the charter of the telephone company, germane, we think, to the immediate question:

“Article 1. This association shall he known as the 'Paducah Telephone Company, by which name it shall contract and be contracted with, sue and be sued, and transact all its business.
“Art. 2. This association is formed for the purpose of operating a through system of tglephone lines, long-distance and local exchange, in Cottle county, Texas, and also long-distance and exchange lines in Motley, Dickens, Childress, and Foard counties, Texas. * * *
“Art. 6. The capital stock of this association shall be divided into 600 shares, each share valued at $25.00, but said capital stock may be increased to $25,000 by vote of the majority of the stockholders by amendment filed in the office of the Secretary of State; that 50 per cent, of said stock is actually fully subscribed and (paid) into the treasury of said association.”

In every respect, unless subject to the criticism mentioned, the articles of association are regular and filed by the association with the Secretary of State, and the charter was granted. We also presume that the telephone company in good faith solicited this charter granted to it by the state of Texas, and there has been an actual user by it of the corporate franchise, if it exists; otherwise, it was the duty of the pleader, in an equitable proceeding for an injunction, to have negatived such elements of a de facto corporation, and the position of appellant in reality in this cause is that the appellee is not a- de jure corporation, and that its charter is void and unavailable for any purpose.

We are not sure that, this association having solicited this charter, and the charter having been granted, and said association “formed for the purpose of operating a through system of telephone lines, long-distance and local exchanges,” etc., in the counties named, that the same is not a substantial compliance with the statute, and would be a corporation de jure in a quo warranto proceeding between it and the state; a narrow signification of the language in the charter may not, strictly speaking, bring the same within the literal meaning of a corporation formed for the purpose of “constructing and maintaining” a telephone line, hut the Secretary oft State, of course, presuming his knowledge of the statute with reference to the incorporation of this character of associations, must have given a construction of the ianguage of the charter compatible with what the statute intended, and with what the members of the prospective association were soliciting under the statute.

However, we believe, if this is a de facto corporation, the appellant is unable to complain. From our reading upon this subject, we gather that, if an association is a de facto corporation, it has ordinarily in it relationship with all persons, except as against the state, the same powers, and is subject to the imposition of the same obligations, as a corporation de jure; it enjoys that status until the state questions its existence.

“A corporation de facto is, with a very few exceptions, a corporation qualified with all the powers of a perfect organization.” l Thompson on Corporations (2d Ed.) § 225. This same author quotes from the Supreme Court of California, People v. La Rue, 67 Cal. 526, 8 Pac. 84, the following: “A corporation de facto may legally do and perform every act and thing which the same entity could do or perform were it a de jure corporation. As to all the world, except the paramount authority under which it acts, and from which it receives its charter, it occupies the same position as though in all respects valid, and even as against the state, except in direct proceedings to arrest its usurpation of power, its acts are binding.”

From the decisions and the text-books on corporations, we gather that the requisites of a de facto corporation, where the charter is not specifically granted by the Legislature, and the same is constituted by articles of association under some general law, are: First, the existence of some law under which a corporation with the powers assumed might lawfully be created; second, an effort in good faith to incorporate thereunder; third, an actual user under the franchise granted of the rights claimed to be conferred by such law. As against the petition for injunction, as stated by us, we presume the last two elements with reference to this association to exist — the petitioner does hot negative either of them, and, upon a careful reading of the petition, we are inclined to think they are inferentially alleged.

Judge Marr, of the Commission of Appeals, in the case of Allen v. Long, 80 Tex. 266, 16 S. W. 45, 26 Am. St. Rep. 735, said: “It is only where there has been an effort to conform to the forms of law in establishing a corporation, and some formal defect exists merely as to the mode of complying with the law, and the body is dealt with and acts as a corporation, that it is regarded as one de facto. 4 Am. & Eng. Enc. of Law (Old Ed.) 197, 198.” The Supreme Court of Minnesota, in the case of Finnegan v. Noerenberg, 52 Minn. 239, 53 N. W. 1150, 18 L. R. A. 778, 38 Am. St. Rep. 552, with reference to apparent organization and de facto corporations, said: “The ‘color of apparent organization under some charter or enabling act’ does not mean that there shall have been a full compliance with what the law requires to he done, nor a substantial compliance. A substantial compliance will make a corporation de jure. But there must be an apparent attempt to perfect an organization under the law. There being such apparent attempt to perfect an organization, the failure as to some substantial requirement will prevent the body being a corporation de jure; but, if there he user pursuant to such attempted organization, it will not prevent it being a corporation de .facto.”

We are inclined to think that any definition will not meet the exigencies of all cases; we, however, believe if a corporation is de facto for one purpose, whatever the .nature of the litigation, unless in a direct proceeding by the state, it is a de facto corporation for all purposes, and, that such a rule is the safer policy. We believe that this is a ■de facto corporation, and, if not a de jure corporation, however, until there is a remonstrance and ouster by the state, it is entitled ■to the same privileges which the state has granted to all corporations of the same character seeking its privileges, viz.: The privilege granted by the act permitting a user for the purpose of constructing a telephone line -on a public highway in such manner as not to incommode the public.

Third. While the question is not discussed, it may be contended that the statute, from a ■reading of all the articles in the chapter with reference to “magnetic telegraph corporation,” only intended to grant the privilege of the use of the public highways to such corporations as had the right of eminent domain (which, of course, is true), following with the further assertion that a de facto corporation is not such a corporation as is entitled to the right of eminent domain.

The state has granted the charter (unless it be said that it is void, and the association is not a corporation de jure), and is presumably accepting the fees entitled to be exacted under the law from all corporations. If the right of eminent domain is denied to a public ■service corporation, which, on account of some omission, would otherwise be a corporation de facto, most public service corporations, if not all, would have to be de jure corporations in order to exist; the right of eminent domain is ordinarily a prerequisite to the existence of public service corporations, and the logic would be that such a public service association could not, as a practical question, attain the status of a corporation for any purpose, nor urge as a defense, if it had not entitaüve existence in law for any purpose, that the property which it had attempted to legally acquire by condemnation was held by color of title, unless perchance the doctrine of estoppel would cut off the antagonist, At any rate, such a doctrine we believe would entail consequences which the courts should not tolerate.

The weight of authority, and we think the soundness of the reasoning, is in favor of de facto corporations exercising the right of condemnation. Thompson, in his work on Corporations (2d Ed.) vol. 1, § 257, says: “Perhaps the most prominent question that has arisen as to the power of corporations de facto is with reference to their right to exercise the power of eminent domain. * * * It may be said that there are no good reasons why this class of corporations should not possess such power. If a corporation de facto' is a legal entity, as made to appear in other parts of this chapter, until questioned by proper authority, and possesses the general powers of a de jure corporation, it could certainly exercise the power of eminent domain, unless in such a proceeding strict proof of incorporation was required. But such proof is not required in such proceedings any more than in other cases of the assertion of a statutory right, and in this, as in other instances, when such right is challenged, proof of a de facto existence should be sufficient.” In the note under this section are numerous authorities, affirmative and negative, upon the proposition.

Elliott on Railroads (2d Ed.) vol. 2, § 957, says: “As a rule, the legal existence of a de facto corporation can be questioned only by the state in a direct proceeding instituted for that purpose. Accordingly the courts will not enjoin a corporation from condemning land for a public purpose, on the ground that the corporation was irregularly organized, nor will they in many jurisdictions allow the legality of the incorporation of a de facto railroad corporation to be questioned in condemnation proceedings.” Also see notes under this section.

The Supreme Court of Alabama, in the case of Railway Company v. Union Springs & Northern Railway Co., 144 Ala. 639, 39 South. 473, 2 L. R. A. (N. S.) 144, holds (quoting the syllabus): “The right of a corporation to exercise the power of eminent domain cannot be defeated by one whose property is sought, on the ground that it is not duly incorporated, since it may proceed as a de facto corporation.” This court in its reasoning says that de facto corporations “are under the protection of the same law, and governed by the same legal principles,” as de jure corporations, “so long as the state acquiesces in their existence and exercise of corporate functions.” See 2 L. R. A. (N. S.) 144, and notes under said cause.

Lewis on Eminent Domain, vol. 2 (3d Ed.) § 592 (Old Ed. § 391), says: “Where the application [for condemnation] is by a corporation,. its corporate existence may be denied, and thereupon proof of incorporation must be made. It will be sufficient, however, for the petitioner to show that it is a corporation de facto, and, if thig appears, the legality of the incorporation cannot be inquired into. This is in accordance with the general rule that, where the existence of a corporation comes collaterally In question, it is sufficient to show a de facto organization.” Also see notes pro and con of decisions under said section upon said question.

Our conclusion is that the action of the district judge upon the preliminary hearing in denying the injunction should be affirmed, and it is so ordered.

On Motion for Rehearing.

The appellant asserts in this cause, on motion for rehearing, that the court erred in holding that, when the townsite company filed its map, and recorded its deed of dedication to the public, the dedication was subject to article 1231, authorizing a telephone company to construct its telephone line along or across the highways of the state, insisting that, under the Oonstitution, the company would be required to condemn and pay the value of the fee in the street. Irrespective of the statute granting the privilege to such a public utility, the courts are in irreconcilable conflict as to the right of re: Covery by abutting owners for the use of the street, as exhibited by the cases of Hobbs v. Long-Distance Telephone & Telegraph Co., 147 Ala. 393, 41 South. 1003, 7 L. R. A. (N. S.) 90, 11 Ann. Cas. 461, and Frazier v. East Tennessee Telephone Co., 115 Tenn. 416, 90 S. W. 620, 3 L. R. A. (N. S.) 325, 112 Am. St. Rep. 856, 5 Ann. Cas. 838, with the annotated notes; quite a responsible array of authorities holding that the erection of a telephone or telegraph line is not inconsistent with the purpose for which a street is dedicated, and is consistent with its use as a means of intercommunication, (as much so as the use of the streets by vehicles or any other accustomed mode of conveyance upon the highways, that this method of transmission is an economical substitute for actual travel, reducing time, minimizing energy, and lessening the cost of intercommunication, and is not an additional burden upon the property, but is wholly consistent with one of the principal purposes for which the street was dedicated.

However, as to the statutory feature of this question, we find, in the case of Suburban Light and Power Co. v. Board of Aldermen of the City of Boston, 153 Mass. 200, 26 N. E. 447, 10 L. R. A. 497, by the Supreme Court of• Massachusetts, a statute of Massa chusetts which “permits telegraph companies to erect lines of electric telegraph upon and along highways and public roads in such manner as not to incommode their use by the public” — to that extent the same as our statute. The question here was not involved in that case, but referred to for the provisions of the law. However, in the case of Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7, the same article of the státute was construed, the syllabus of which we quote as fairly reflecting the opinion upon the feature material here: “No compensation is provided by the public statutes to the owner of the fee of a highway for the use of the same by a telegraph company. An additional servitude is not imposed by the appropriation of a public highway under Pub. St. c. 109, §§ 4, 12, for the use of a line of electric telegraph by the erection of poles and wires above the surface of the ground, and the statute is constitutional, although it makes no provision for compensation to the owner of the fee in the highway.” It is true that in that case there is a minority decision by two of the judges of the Supreme Court of Massachusetts, as against the majority opinion of the other five members of the court; however, the holding of the majority opinion accords with our views, and is followed. The public street involved in that case had been obtained and paid for by condemnation, and the court further observed that: “The discovery of the telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly similar to, if not identical with, that public use of transmitting information for which the highway was originally taken, even if the means adopted are quite different from the post boy or the mail coach. It is a newly discovered method of exercising the old public easement, and all appropriate methods must have been deemed to have been paid for when the road was laid out.”

When the owner of land plats his property for the purpose of creating a new town, and dedicates the streets, they are as much public highways as if condemned and paid for by the public; the right of public use is as much enlarged as to the streets in this character of case as if condemned and paid for.

In addition to the reasons given in that opinion, we believe that, when the townsite company dedicated its streets to the use of the public, the statute mentioned became a part of its dedication, and the owner of the land, in placing the plat upon the record, has not the right to make a reservation, as in this case, inconsistent with the statute — the dedication must be of a public street with the burden which the statute placed upon the same. If the owner has the right to limit his dedication as to the use of the street attempted to be dedicated to the public, the streets are- not public highways of the state within the contemplation of the statute, which would be anomalous.

We think there were ample reasons for suggesting in the original opinion that the reservation was void on account of the statute. We have attempted to carefully consider the motion for rehearing on all questions, and it is in all things overruled.