author: CARL, J.

text:
    SCHRAMM v. P. J. OWENS LUMBER CO.

    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 21, 1914.
    Rehearing Denied March 4, 1914.)
    1. Trial (§ 255) — Instructions—Necessity of Requests.
    In an action for the price of lumber alleged to have been sold to defendant, the statute of frauds was not pleaded, but there was evidence tending to show that the lumber was sold to a contractor, and that, if defendant agreed to pay therefor, the agreement was not in writing. The court charged that if the lumber was not sold to defendant but to the contractor, and defendant did not promise or agree to pay therefor before delivery, to find for defendant. Held that, the statute not having been pleaded and having been partially covered by the charge, defendant could not complain of the court’s failure to charge directly and affirmatively as to the statute of frauds, in the absence of any request for a further instruction on this subject.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    2. Appeal and ERrob (§ 173) — Necessity of Pleading.
    The defense of the statute of frauds must be made in some way in the trial court and cannot be interposed for the first time on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1079-1089, 1091-1093, 1095-1098, 1101-1120; Dec. Dig. § 173.)
    3. Trial (§ 255) — Instructions—Necessity of Requests.
    Where the court does not cover all the issues satisfactorily to a party, he should request special charges that do cover them.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. § 255.]
    4. New Trial (§ 102) — Newly Discovered Evidence — Diligence in Procuring.
    In an action for the price of lumber, the trial court did not abuse its discretion in denying a new trial on the ground of newly discovered evidence consisting of delivery bills, showing that the lumber was billed to a contractor and not to defendant, where, though it appeared that such bills were found since the trial, it further appeared that they were found in a box of old papers left by the contractor on defendant’s premises in the possession of himself and his employé, and there was no showing that they could not have been discovered before the trial by the use of ordinary diligence, or that any diligence was used, since diligence must be shown and cannot be presumed.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.]
    5. New Trial (§ 102) — Newly Discovered Evidence — Diligence in Procuring.
    In an action for the .price of lumber, a new trial on the ground of newly discovered evidence, consisting of the testimony of a witness to whom defendant claimed the lumber was sold, was properly denied, where, though it appeared that defendant had no direct communication with such witness and did not know his whereabouts for some time prior to the trial, it was apparent that he knew the importance of his testimony for some time before the trial, and it did not appear what effort he made to find him or to obtain his testimony, or that he could not have found him if he had tried.
    [Ed. Note. — For other cases, see New Trial, Cent. Dig. §§ 207, 210-214; Dec. Dig. § 102.]
    Appeal from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by the P. J. Owens Lumber Company against Gustav Schramm. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Leo Tarleton, of San Antonio, for appellant. Hertzberg, Barrett & Kercheville, of San Antonio, for appellee.

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

       Application for'writ of error pénding in Supreme Court.

   CARL, J.

This suit was filed by appellee, P. J. Owens Lumber Company, against appellant, Gustav Schramm, on a sworn account for the sum of $886.87 for lumber and material alleged to have been sold to appellant. The defendant below answered by general denial, and denied specially under oath that he ever had any kind of a contract with appellee or that he bought a single item of the goods shown in the account.

The evidence of the plaintiff below was to the effect that the lumber was sold to the defendant and that he agreed to pay for same, while the contention of appellant was that he did not buy the same, nor did he at any time agree to pay therefor, and that, if plaintiff sold same, it was to one A. E. Reed, a contractor, who was erecting Mr. Schramm’s building. The pleadings do not raise the issue of the statute of frauds, but appellant’s evidence was .along that line, tending to show that the lumber was really sold to Reed, and that, if Schramm did agree to pay for same, it was not in writing, and therefore within the statute. On this phase of the case the court charged the jury as .follows: “If the material was not sold to the defendant, but was sold to a contractor who was building a house for defendant, and the defendant did not promise and agree with the plaintiff that he would pay for the same before said material was delivered to the contractor, then you will return your verdict for the defendant.”

The first assignment is that the court erred in not submitting the law in the charge directly and affirmatively on the statute of frauds. No charge was requested on that subject; and since the pleadings do not raise that issue, and no special charge was requested, the court was not called upon to do more than was done in giving the charge above to cover the issue raised by the evidence. The answer does not even contain a general demurrer. The defense of the statute of frauds cannot be interposed for the first time on appeal. Hart v. Garcia, 63 S. W. 921. The defense should in some way be made in the trial court. It might be different if the plaintiff below had declared upon a promise of Schramm to pay Reed’s debt; but this suit is brought directly against appellant and alleges that he bought and agreed to «pay for the material. If the company had alleged that Reed bought the material and Schramm agreed to pay for it, it would affirmatively appear that it was within the statute of frauds, and Judge Neill intimates that in such a case it could be raised- by an objection to the evidence. International Harvester Co. v. Campbell, 43 Tex. Civ. App. 421, 96 S. W. 98. If the appellant was not satisfied with the charge of the court, it became his duty to request one that suited him better. This was not done, and, where the court does not cover all the issues satisfactorily to a party, he should request special charges that do cover them. Hengy v. Hengy, 151 S. W. 1128; I. & G. N. v. Williams, 160 S. W. 640; Park v. Pyle, 157 S. W. 445. Appellant contends that it was the duty of the court to charge on the statute of frauds, notwithstanding no special charge was requested, and cites Epperson v. Railway Co., 125 S. W. 120, and Parrish v. Adwell, 124 S. W. 442. This issue was partially covered by the charge, because the court instructed the jury in substance that if they believed the material was sold to a contractor, and defendant did not promise and agree that he would pay for same before the material was delivered, to find for the defendant. The charge given is not attacked, and, if defendant desired a further instruction, it became his duty to request it. This was not done, and we therefore overrule this assignment.

The second assignment complains of the action of the trial court in refusing him a new trial on the ground of newly discovered evidence. This new evidence was in the shape of delivery bills showing that the material was billed out to A. E. Reed and not to Schramm, as contended by the plaintiff below. There is no doubt that this was important testimony, and doubtless would have been a very important factor in the trial of the case, had it been used. But in order that this court may, as a matter of law, hold that the trial court abused his discretion in refusing a new trial on the ground of newly discovered evidence, the party seeking a new trial by reason thereof must, among other things, show that he could not have discovered same in time for the trial by the use of ordinary diligence. This the appellant does not do. It is true the affidavits state that it was found since the trial; but those same affidavits show that it was on the premises of the appellant all the time. The affidavit of appellant in his motion for a new trial says that he “also found among the scattered papers of the said A. E. Reed, left on the premises, dray bills of the P. J. Owens Lumber Company from May 3, 1912, to August 9, 1912,” etc. These, he says, were found since the trial. There is no diligence claimed or set forth in the motion or in the affidavits attached thereto. Ike Livingston’s affidavit says he found these papers in a box on the premises since the trial. He was an employé of appellant and right there on the place. He says he found the dray bills in a box of old papers left by Reed on the premises. These were the important documents (and they are important) which constitute the newly discovered testimony; but who was in possession of those premises all the while ? None other than Mr. Schramm and his employé, Livingston. So far as we know, they could have found the papers any day before the trial by simply using ordinary diligence. They knew that was Reed’s box, and ordinary prudence would suggest that they see what Reed left there. At any rate, the burden is on them to show what diligence was used. No statment is made anywhere in the motion or in the affidavits attached thereto which throws the least light on diligence used, if any was used, to discover these papers. That they are important, even vital evidence in the light of this record, there is no doubt, and if appellant had shown anywhere in this record that any diligence was used, and that they could not have been discovered before the trial, this case would certainly terminate differently from the way it will be decided; But if appellant fail to properly present these matters so as to enable this court to act thereon, in accordance with the decisions of this state, and in a way favorable to him, we cannot be held responsible. This court is not authorized to supply by presumption that which the law makes it the duty of appellant to show, diligence in matters of this kind. The strongest that appellant’s case can be put is that the papers were found since the trial; but the duty owed this court to show why they were not sooner found is left unperformed.

The same might be said of Reed’s testimony and the diligence used to get him. The statement is made “that defendant had no direct communication with said A. E. Reed since on or about the latter part of the month of July, and did not know his whereabouts prior to the trial of this case on the 10th day of March, 1913.” The defendant below knew from the time this suit was filed, certainly from the time his answer was filed, on November 2, 1912, the importance of Reed’s testimony, because the petition de-dares on a straight sale to Schramm. He is now informed that Reed is in Dallas, and will testify that he bought the material sued for and that no one else did. Important, it is true, but what effort has been shown to get either Reed or his deposition? What effort was made to find him between November, 1912, and March, 1913? He says he had no direct communication with Reed, but he does not negative the proposition that he could have found Reed if he had tried. This court will not presume that appellant was diligent; the burden is on him to show it; and this he has absolutely failed to do. “It must appear that the evidence is material, has come to the knowledge of the applicant since the trial, could not be sooner discovered, is not merely cumulative, and that it is not for the purpose of impeachment.” Mitchell v. Bass, 26 Tex. 377. “The character of diligence used should be shown.” S. & E. T. Ry. Co. v. Wood, 69 Tex. 682, 7 S. W. 372; Johnson v. Flint, 75 Tex. 381, 12 S. W. 1120; Conwill v. G., C. & S. F. Ry. Co., 85 Tex. 102, 19 S. W. 1017; T. & N. O. Ry. Co. v. Scarborough, 104 S. W. 408; Wagner v. Geiselman, 156 S. W. 527.

In the light of the record presented, we are compelled to affirm the judgment.


source: Caselaw Access Project

author: RAINEY, C. J.

license: Public Domain

text:
    KENNEDY v. WINFREY.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 31, 1914.
    Rehearing Denied Feb. 28, 1914.)
    1. Good Will (§ 7) — Action to Enjoin— Consideration.
    A petition, in an action to enjoin defendant from competing in a livery business, sold to plaintiff, alleging that defendant, in consideration of a certain sum in cash paid by plaintiff, sold and conveyed to plaintiff a livery business including horses, carriages, and good will, sufficiently alleged a consideration for the good will.
    [Ed. Note. — For other cases, see Good Will, Cent. Dig. §§ 6-9; Dec. Dig. § 7.]
    2. Appeal and Error (§ 1050) — Harmless Error — Admission op Evidence.
    The admission of the testimony of a witness as to the obvious effect of the express terms of a written contract was harmless error, though such testimony was objectionable as a conclusion of the witness, and because the writing was the best evidence.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. § 1050.]
    3. Witnesses (§ 379) — Impeachment — Evidence.
    In an action for damages and for injunction against defendant for breach of his sale of a livery business and its good will to plaintiff, statements contained in defendant’s answer in a suit filed against him by a third person, to the effect that the building was to be used as a livery stable, was admissible to impeach defendant’s sworn testimony that the building was not his.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1209, 1220-1222, 1247-1256; Dec. Dig. § 379.]
    4. Evidence (§ 273) — Declarations.
    Such statements were also admissible as a declaration that the building was his.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1120; Dec. Dig. § 273.]
    5. Contracts (§ 88) — Action por Breach-Burden op Pboop — Consideration.
    Where a party admits the execution of an instrument and then attempts to avoid it by showing failure of consideration or otherwise, the burden is on him to establish such defense.
    [Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 403-405, 407; Dee. Dig. § 88.]
    6. Good Will (§ 7) — Breach op Contract.
    In an action for damages and to enjoin breach of a contract whereby defendant had sold a livery business and its good will, evidence showing the sale and defendant’s agreement not to engage in that business in the town for five years held to support a judgment for plaintiff.
    [Ed. Note. — For other cases, see Good Will, Cent. Dig. §§ 6-9; Dee. Dig. § 7.]
    Appeal from District Court, Delta County; A. P. Dohoney, Judge.
    Action by G. W. Winfrey against S. W. Kennedy, for damages for breach of contract and for injunction. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Patteson & Patteson, of Cooper, for appellant. I. B. Dane, of Cooper, and B. B. Sturgeon and Wright & Patrick, all of Paris, for appellee.

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

   RAINEY, C. J.

G. W. Winfrey brought this suit against S. W. Kennedy to recover $2,000 for the breach of a contract by him, whereby he agreed not to engage in the livery business in the town of Cooper for the term of five years, and to restrain appellant from so doing during said period. Kennedy answered by general demurrer, special demurrers, general denial, and specially answers that at the time he sold to Winfrey said livery business Winfrey received full consideration for the contract of sale, and that he (Kennedy) received no consideration for the execution of the contract not to engage in the livery business, or enter into said business with any one else, for the term of five years in the town of Cooper.

A trial was had and resulted in a judgment for Winfrey for the sum of $500, and enjoining Kennedy for engaging in the livery business in the town of Cooper for the period of five years from August 2,1911, from which judgment Kennedy prosecutes this appeal.

Appellant complains of the trial court for not sustaining his fifth special demurrer, which, in effect, says that plaintiff does not allege that at the time said trade was made the good will was estimated to be of any value. Winfrey’s suit is based on the following contract: “The State of Texas, County of Delta. Cooper, Texas, 8/2/1911. I, S. W. Kennedy, for the consideration of the sale of my livery business to Geo. Winfrey do agree with him that I will not enter into the livery business against him or go in with any one else in opposition to Mm for a term of five years. S. W. Kennedy.” The petition, among other things, alleged in substance that the defendant on that date, in consideration of the sum of $2,300 cash paid by the plaintiff, sold, assigned, transferred, and conveyed to the plaintifl; Ms said livery business in Cooper, including horses, buggies, carriages, harness, bus, and good will of said livery business. The petition sufficiently alleged a consideration for the good will, and there was no error in overruling special demurrer No. 5.

The tMrd assignment of error is: “The court erred in permitting the plaintiff to prove by his witness, R. J. Thomas, in his examination in chief the following statements, to wit: Q. ‘That was not an actual sale and transfer of the stable at that time— the sale was consummated afterwards? A. I tMnk that contract was drawn merely to bind up what they agreed to do and specify the amount that each one was to pay in ease either refused to comply with the contract.’ At the time this question was asked and answered, the defendant objected because the same called for a conclusion of the witness on the contract and the contract was the best evidence of its contents.” We do not think the answer could possibly have prejudiced appellant’s case. The answer of the witness is not strictly in response to the question, and the contract pleaded by the appellant expressly stipulates that if either Kennedy or Winfrey failed to comply therewith they should forfeit a stipulated sum, and the witness truly stating the effect of said contract could in no wise have changed the result.

The fourth assignment is: “The court erred in overruling the objections of defendant and in permitting the plaintiff to read in evidence before the jury the following two clauses which were contained in a certain answer filed in a suit which T. T. Garrard had filed against the defendant in cause No. 1478 in the district court of Delta county, Tex., which are as follows, to wit: ‘That said building was to be a galvanized iron building, the wall to be 12 feet in height, and that it was his purpose to use said building for a livery stable when completed in which to care for horses and buggies.’ Also, ‘defendant says it is his purpose to conduct and have conducted said stable in an orderly and sanitary manner.’ ” Appellant’s contention is: “It is reversible error for the court to permit evidence before a jury that is immaterial and irrelevant in the case which is of such a nature as is liable to confuse or mislead the jury.” This testimony was material as impeaching. He had sworn in this ease that the building was not his, and in the suit of Garrard v. Kennedy he stated in a sworn answer that said building was his. The testimony was also admissible as a declaration that the building was Ms.

The fifth assignment is: “The court erred in the second paragraph of his charge to the jury wherein he said, ‘If you believe from a preponderance of the evidence that, at the time the transaction between plaintiff and defendant for the purchase or said livery business was closed and the money paid by plaintiff, the defendant had not promised or stated to plaintiff that he would not go into the livery business in Delta county, and that the trade was closed without such agreement or understanding, then the agreement not to go into such business sued upon would be void for want of consideration, and you will find for the defendant.’ ” The contention by appellant is that: “It is reversible error for the court to place upon a party to the suit in Ms charge to the court a more onerous duty than the law places; the plaintiff proved the execution of the instrument sued on, also introduced the contract in writing of prior date which was under all the testimony the contract under which the sale of the livery stable was made, and which contained no reference-as to defendant not resuming the livery business, and the burden was then on the plaintiff to prove that the oral agreements were made prior thereto, and it was reversible error in the court to charge that the defendant had to establish by a preponderance that such oral agreements were not made.”

The law is well settled in tMs state that where a party admits the execution of an instrument, and then attempts to avoid it by showing a failure of consideration or otherwise, the burden is upon him to establish such defense.

The ninth assignment of error attacks the judgment as not being supported by the evidence. We think this assignment is without merit. The evidence shows that appellant sold to Winfrey his livery business in Cooper, and agreed not to engage in said business alone or with any one else in the town of Cooper for a period of five years, for which he received a consideration. Having breached tMs contract, he is liable to appel-lee therefor. The amount of the verdict is not attacked as being excessive, so we conclude that the ninth assignment should be overruled.

Finding no reversible error, the judgment is affirmed.


author: JENKINS, J.

text:
    STATE v. HALDEMAN.
    (Court of Civil Appeals of Texas. Austin.
    July 5, 1913.
    Rehearing Denied Oct. 8, 1913.
    Writ of Error Denied by Supreme Court Dec. 17, 1913.)
    1. Arbitration and Award (§ 73) — Right to Appéal.
    Where the determination of a matter is referred to a special tribunal, to act as an arbitrator and not in due course of law, the determination of such a tribunal is final and cannot be appealed from, even though the person constituting the tribunal is the judge of a court' and the matter is decided in accordance with the usual rules of procedure.
    [Ed. Note — For other cases, see Arbitration and Award, Cent. Dig. §§ 368-398; Dec. Dig. § 73.]
    2. Arbitration and Award (§ 73) — Submission to Arbitration — Effect.
    Act 31st Leg. (2d Called Sess.) c. 28, making an appropriation for the payment of a claim against the state held by the wife of a public contractor for extra work and materials furnished the state for a public building, made the establishment of the claim by any district court a condition precedent to payment. Held, that a district judge, in' deciding upon such a claim, was not acting as a special commissioner or arbitrator whose judgment would be final, but as a duly constituted court.
    [Ed. Note. — For other cases, see Arbitration and Award, Cent. Dig. §§ 368-398; Dec. Dig. § 73.]
    3. Courts (§ 247) — Texas Court of Civil Appeals — Jurisdiction— ‘Case. ”
    Under Const, art. 5, § 6, declaring that the Courts of Civil Appeals shall have appellate jurisdiction, coextensive with their respective districts in all civil cases of which the civil courts shall have jurisdiction, a Court of Civil Appeals has jurisdiction of an appeal from a proceeding in the district court, where the district judge, under an authority of Acts 31st Leg. (2d Called Sess.) c. 28, established the claim of the wife of a public contractor against the state for extra work and materials furnished in the erection of a public building; the proceeding being in the nature of a “ease,”. the "wife suing the state, under the permission given, for a sum of money, and the state resisting recovery (citing 1 Words and Phrases, p. 985).
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    4. States (§ 120) — Appropriations—Power of Legislature.
    Acts 1899, providing for the erection of buildings at the insane asylum, appropriated the specific sum of $47,000 for the buildings to be erected, and provided that the fees of the architect should be discharged out of that amount. The contractor for the buildings performed extra work and furnished extra materials to a considerable amount. Held, that the statute providing for the erection of the building was not a sufficient pre-existing law providing for the payment of the extra work to warrant the Legislature in making an appropriation for its payment; Const, art. 3, § 44, declaring that the Legislature shall not appropriate any money on any claim when the same shall not have been provided for by pre-existing law.
    [Ed. Note. — For other cases, see States, Cent. Dig. § 119; Dec. Dig. § 120.]
    5. States (§ 120) — Public Buildings.
    Where a contractor for a public building performed extra work and furnished additional materials, the Legislature is, under Const, art. 3, § 53, providing that the Legislature shall have no power to grant extra compensation to a contractor after the service has been rendered, without authority to make an appropriation for the payment of such work and services.
    [Ed. Note. — For other eases, see States, Cent. Dig. § 119; Dec. Dig. § 120.]
    6. States (§ 120) — Claims Against States^ Debts.
    Where a public contractor did extra work and furnished additional materials without any warrant in law for his compensation, the Legislature cannot, under Const, art. 3, § 49, declaring that no debt shall be created on behalf of the state, except to supply casual deficiencies of revenue, defend the state, and pay existing debts, make an appropriation to pay the contractor; there being no pre-existing debt as a basis.
    [Ed. Note. — For other cases, see States, Cent. Dig. § 119; Dee. Dig. § 120.]
    Appeal from District Court, Travis County; Geo. Calhoun, Judge.
    Action by Mrs. E. R. Haldeman against the State of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    B. F. Looney, Atty. Gen., and W. A. Keeling and Luther Nickels, Asst. Attys. Gen., for the State. F. C. von Rosenberg and N. A. Rector, both of Austin, for appellee.

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

   Findings of Fact.

JENKINS, J.

On or about May 20, 1899, the Legislature of Texas passed an appropriation bill, which among other things provided for the erection of a new infirmary at the State Lunatic Asylum, and appropriated therefor the sum of $10,000, and also provided for the erection of a building to be used as an associate dining hall and kitchen, storeroom, amusement hall, and quarters for employes, and appropriated therefor the sum of $37,500, or so much thereof as might be necessary, to be expended in the erection of said buildings under the direction of the board of managers, in accordance with plans and specifications to be furnished by an architect to be appointed by the Governor; the compensation to said architect to be paid out of said appropriation. Plans and specifications were drawn by an architect appointed under said act, and contract was let by the board of managers to one John F. Hart. H. P. Halde-man, deceased, became a surety on the bond of said Hart to secure the performance of said contract. Said building was erected and completed by said contractor and said Halde-man, in accordance with the plans and specifications of the state architect, on or about October 16, 1901. It is alleged by appellee that said Hart and said Haldeman furnished, at their own expense, material and labor on said building, amounting in the aggregate to $13,393.44, not included in the original contract; that on or about December 18, 1899, Haldeman acquired by written transfer all the rights and benefits belonging to said Hart, growing out of said contract, and the labor done in erecting said buildings; that neither the said Hart nor the said Haldeman in his lifetime ever received any pay from the state or from any other person for said extra wort or extra material; tfiat said Hal-deman presented his claim for said extra work and material, amounting to said sum of $13,393.44, to the Twenty-Eighth Legislature, and that said Legislature allowed on said claim the sum of $12,000, and appropriated that sum for the payment of said debt, but the same was vetoed by the Governor; that thereafter said claim was presented to the Twenty-Ninth Legislature and 'allowed for .the sum of $10,920.30, which item was also vetoed by the Governor; that the Thirty-First Legislature passed a general appropriation bill (Gen. Laws 1909, c. 28, p. 523), carrying with it many miscellaneous items, and among others an appropriation of $11,000, in words and figures as follows: “For the payment of the claim against the state held by the wife of H. P. Haldeman, growing out of extra work and material furnished the State Lunatic Asylum for an associate dining hall, not contemplated in the contract and not in the plans and specifications to same, and also for work done and material furnished on the infirmary building and for extras over and above the contract, and not mentioned in the plans and specifications, furnished in 1899 to 1901, provided said claim is established by any district court of the state of Texas, and authority is hereby given to the said Mrs. H. P. Haldeman, or her assigns or the holder of said claim, to institute suit against the state of Texas on said claim,” etc.

The trial court found all of these allegations to be true, and the testimony is sufficient to sustain these findings of the court. The defendant answered by general demurrer and general denial, and by several special exceptions hereinafter referred to. The trial court rendered judgment for appellee for the sum of $10,920.30, with interest thereon at the rate of 6 per cent per annum from the date of said judgment.

Opinion.

1. Appellee has filed in this court a motion to dismiss the appeal herein for the reason that the act above referred to, authorizing appellee to sue the state, did not reserve the right of appeal to the state, and that therefore no appeal will lie from the judgment of said court, and that this court is without jurisdiction. It is well settled that where the determination of a matter is referred to a special tribunal proceeding under authority of such reference, and not by due course of common law, the determination of such tribunal is final. This may be true, even though the party constituting such special tribunal is a judge of a court, and the matter is brought before him by petition and answer, and he hears the evidence upon said issue under the same rules and regulations as would be applicable in a suit at law. Brown v. Wheelock, 75 Tex. 387, 12 S. W. 111, 841.

2. The first issue presented by the motion to dismiss is as to whether the action of the district judge of Travis county, before whom the case was tried without a jury, was that of a special commissioner or of a court. It will be seen, by reference to the act of the Legislature referred to in the above statement of facts, that the claim of Mrs. Haldeman was to be paid, “provided said claim is established by any district court of the state of Texas.” It will further be seen that said act authorized Mrs. Halde-man to institute suit against the state of Texas for the recovery of said claim. We hold that the district judge, in rendering judgment in,this case, did so as the district court of Travis county, and not as a special commissioner.

3. Appellee’s claim having been sued upon in the district court of Travis county, it was not necessary that the act authorizing such suit should have specially provided for the right of appeal, inasmuch as the Courts of Oivil Appeals are given, by the Constitution of this state, “appellate jurisdiction, coextensive with the limits of their respective districts, which shall extend to all civil cases of which the district courts or county courts have original jurisdiction.” Article 5, § 6. The proceedings herein in the district court had all the elements of a “case.” The plaintiff was seeking to recover from the defendant a sum of money, and the defendant was resisting such recovery, and the issue thus formed was submitted to the arbitrament of the court. Slaven v. Wheeler, 58 Tex. 23; Osborn v. Bank of U. S., 22 U. S. (9 Wheat.) 738, 6 L. Ed. 204; Words and Phrases, vol. 1, p. 985. For the reasons above given the motion to dismiss is overruled.

4. Appellant insists, under appropriate assignments of error, that the appropriation bill referred to in the statement of facts, under and by virtue of which this suit was instituted and judgment herein rendered for plaintiff, was and is void and of no effect, because the same is contrary to and in violation of section 44, art. 3, of the Constitution of Texas. Said article among other things provides that: “The Legislature * * * shall not grant * * * by appropriation or otherwise, any amount of money out of the treasury of the state, to any individual, on a claim, real or pretended, when the same shall not have been provided for by pre-existing law.” The issue here presented is as to whether or not the act of 1899 (Gen. Laws 1899, e. 5), authorizing the erection of said buildings, was a preexisting law, providing for the payment for-work done and material furnished on said buildings in excess of the sum of $47,500, the aggregate amount of the appropriation for such buildings; that is to say, did the directors of the asylum have authority, under said law, to contract for buildings in excess of the amount appropriated therefor? We bold that they did not. Nichols v. State, 11 Tex. Civ. App. 327, 32 S. W. 452; State v. Wilson, 71 Tex. 291, 9 S. W. 155; section 44, art. 3, Constitution of Texas; City of Bryan v. Page, 51 Tex. 534, 32 Am. St. Rep. 637; Ferguson v. Halsell, 47 Tex. 422; Mechem on Public Officers, pp. 828, 334.

It is true, in the Nichols Case, supra, the act expressly provided that the amount to be expended for the building therein' provided for should not exceed the sum of $40,000; but we hold that, when the Legislature appropriates a specific amount for a public building, this is equivalent to limiting the amount to be expended on such building to the amount named in the appropriation bill. The Legislature might authorize commissioners to contract for the erection of a public building of such a character and at such cost as to them might seem best, but such a proceeding would, to say the least of it, be unwise, and such has not been the usual course with reference to public buildings in Texas. It is well known that it is the custom with Legislatures to appoint committees to investigate the needs of public institutions, to hear evidence and visit and inspect such institutions, and to pass appropriation bills for definite amounts for the support, maintenance, and erection of buildings therefor. We do not think by the passage of the appropriation bill above referred to, wherein the specific amount of $47,500 was appropriated for the buildings for the lunatic asylum, the Legislature intended to grant the directors of said institution discretion to incur liability on the part of the state for more than this amount. This view of the case is emphasized by the fact that the act referred to provided that the architect should be paid for his services out of the amount thus appropriated.

5. The Constitution of this state has especially hedged the Legislature about with limitations as to its expenditure of public funds. In addition to the article of the Constitution above referred to, section 53 of article 3 provides that: “The Legislature shall have no power to grant * * * any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after service has been rendered or a contract has been entered into, and performed in whole or in part.” In this case the amount claimed is for extra compensation for work done and material furnished, after the contractor had entered into and performed part of the contract.

6. Inasmuch as the claim herein sued on was not a legal debt against the state, for the reason that it was in contravention of section 44, art. 3, of the Constitution, above referred to, we do not think that the Legislature had any authority to make an appropriation for the payment of said claim, even had it done so absolutely, without requiring the same to be established by judgment of the court. Section 49, art. 3, of the Constitution of this state, provides as follows: “No debt shall be created by or on behalf of the state, except to supply casual deficiencies of revenue, repel invasion, suppress insurrection, defend the state in war or pay existing debts.” The claim sued on-herein was not for any of the items mentioned above, unless it be to pay “existing debt.” If the debt was illegal, it did not exist; and the effect of the appropriation bill was to create, as well as to pay, the debt.

For the reasons hereinbefore given, the judgment of the trial court is reversed and here rendered for appellant.

Reversed and rendered.


author: FLY, C. J.,

text:
    RIPPS v. HERMANN.
    (Court of Civil Appeals of Texas. San Antonio.
    March 3, 1914.)
    1. Execution (§ 171) — Enforcement—Injunction — Newly Discovered Evidence-Lack oe Diligence.
    An injunction will not be granted to restrain the enforcement of an execution for alleged newly discovered evidence, consisting of a letter which complainant claimed he had lost or misplaced, and in which defendant was claimed to have admitted that complainant’s indebtedness was much less than that for which judgment was recovered; there being no allegation that any effort had been made to produce the letter at the trial, or that he had revealed to any one the existence of such letter prior to judgment.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 497-518; Dec. Dig. § 171.]
    2. Execution (§ 172) — Injunction—Collection of Judgment — Partial Validity —Tender.
    Where complainant admitted that a judgment recovered against him was valid to the amount of $616, he was not entitled to an injunction restraining the enforcement of the judgment for a larger amount without having tendered the amount admitted to be due.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 519-539; Dec. Dig. § 172.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Suit by Henry C. Ripps against Arthur J. Hermann. From a decree dismissing the suit, complainant appeals.
    Affirmed.
    See, also, 158 S. W. 781.

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

   FLY, C. J.,

This is an appeal from a decree of the district court sustaining a general demurrer, and dismissing the suit on a refusal to amend. An injunction has been applied for in this court to restrain a sale of property under execution pending this appeal. The petition endeavored to set up grounds for an injunction against an execution issued by virtue of a judgment obtained by appellee against appellant, which judgment was heretofore affirmed by this court, and a writ of error refused by the Supreme Court, and to have the judgment set aside. The ground upon which it was sought to set aside the judgment was that appellant had discovered a letter from appellee which he had lost or misplaced, in which appellee had claimed that appellant, on July 3, 1912, only owed him $616, and then came into court and swore that appellant owed him $1,881.20. There is no allegation that -any effort was made to produce the letter at the trial, that appellee was examined in regard to it, or that the existence of the letter was ever revealed to any one until after the cause had been decided in the Court of Civil Appeals. Counsel for appellant, in their argument, stated that they heard nothing of the letter until after the cause had been decided-against appellant in this court, although appellant knew he had it.

The petition shows an utter lack of diligence. It clearly indicates the carelessness of appellant in putting the letter where he could not find it, and shows a lack of diligence in prosecuting his search. He did not even' communicate the fact of the existence of the letter to his lawyer. It may be that an injustice was done to appellant; but it must distinctly appear that appellant used all diligence to have the letter or its contents before the trial court, before a court of equity will interfere with an execution at such a stage of the case as this. Johnson v. Templeton, 60 Tex. 238; Nevins v. McKee, 61 Tex. 412; Clegg v. Darragh, 63 Tex. 357; Brownson v. Reynolds, 77 Tex. 255, 13 S. W. 986; Kruegel v. Cobb, 124 S. W. 725.

In the petition it is admitted that appellant is indebted to appellee in the sum of $616, and he asks that the judgment be scaled to that amount; but there is no offer to pay the amount admitted to be due on the judgment. In order to entitle appellant to an injunction to restrain the collection of the judgment, he should have tendered the amount admitted by him to be due on the judgment. Criswell v. Bledsoe, 22 Tex. 656; Rosenberg v. Weekes, 67 Tex. 578, 4 S. W. 899; Smith v. Smith, 75 Tex. 410, 12 S. W. 678. The petition of appellant showed that the judgment was valid as to $616, and an execution as to that amount could not be restrained, no matter how invalid the other part may have been, unless there was a tender of the valid part of the judgment.

The allegations as to the perjury of ap-pellee are too uncertain and indefinite to sustain the action declared upori.

The judgment is affirmed.


author: HARPER, C. J.

text:
    HOUSTON TRANSP. CO. et al. v. SAN JACINTO RICE CO. et al.
    (Court of Civil Appeals of Texas. El Paso.
    Jan. 29, 1914.
    Rehearing Denied Feb. 26, 1914.)
    1. Parties (§ 40) — Intervention—Right.
    In a suit to restrain defendants from removing sand bars from a fresh-water stream upon which plaintiff’s land abutted, and from which fresh water for irrigation purposes was taken, an adjoining landowner, who lived near plaintiff’s property, may intervene as a party plaintiff; it being to his interest to prevent the removal of the sand bar which obstructed the flow of salt water.
    [Ed. Note. — For other cases, see Parties, Cent. Dig. §§ 60-63, 65-67; Dec. Dig. § 40.]
    2. Appeal and Error (§ 548) — Necessity.
    An assignment of error complaining of the rejection of evidence cannot be reviewed on appeal, where the evidence was not preserved by a proper bill of exceptions.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2433-2440; Dec. Dig. § 548.]
    3. Navigable Waters (§ 40) — Pollution-Right- op Riparian Owner.
    Riparian rights are property which .will be protected by the courts, and a riparian'proprietor, entitled to the flow of a stream of pure and wholesome water, may enjoin the threatened pollution of the stream, where the threatened invasion will be of long continuance, and the injurious results contingent and of doubtful extent.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 245; Dec. Dig. § 40.]
    4. Navigable Waters (§ 40) — Riparian Owners — Rights op Riparian ' Owners.
    While the owner of the shore of a navigable stream has no ownership in the water, he has the right to divert its waters for domestic purposes and irrigation, so long as it does not interfere with the rights of the public.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 245; Dec. Dig. § 40.]
    5. Navigable Waters (§ 40) — Rights op Riparian Proprietors.
    Where a sand bar in a navigable stream prevented the influx of salt water from the gulf into which it emptied, and thus rendered the stream of value to riparian owners for the pur-ppses of stock raising and irrigation,' private persons who desired to remove the sand bar will be enjoined, for a riparian owner has a property right, and the fact that the sand is peculiarly suitable for building purposes in a nearby city will not authorize the destruction of the riparian owner’s property.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 245; Dec. Dig. § 40.]
    6. Navigable Waters (§ 42) — Prescriptive Title.
    Plaintiffs' were riparian owners on a navigable stream, the waters of which were kept fresh by a sand bar, which prevented the influx of salt water at high tide from the gulf into which the stream emptied. For more than ten years defendants had been taking sand from the bars located in the stream; but, up to the time plaintiffs filed their suit for injunction, the removal of the bars had not threatened plaintiffs’ protection against salt water. Held, that defendants acquired no prescriptive rights as against plaintiffs.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 253-255; Dec. Dig. § 42.]
    7. Appeal and Error (§ 216) — Presentation oe Grounds oe Review in Court Below — Necessity.
    Where no special charge was requested, a party cannot complain that the court refused, to submit an issue to the jury.
    [Ed. Note. — For other cases, see Appeal and Error, Dec. Dig. § 216.]
    Error to District Court, Harris County; Chas. E. Ashe, Judge.
    Suit by the San Jacinto Rice Company against the Houston Transportation Company and others, in which J. R. Farmer and wife intervened. There was a judgment for the interveners, and defendants bring error.
    Affirmed.
    Baker, Botts, Parker & Garwood, Taliafer-ro & Taliaferro, John G. Tod, and A. R. & W. P. Hamblen, all of Houston, for plaintiffs in error. Campbell, Sonfield, Sewall & Myer, of Houston, and Smith, Crawford & Sonfield, of Beaumont, for defendants in error.

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

   HARPER, C. J.

The plaintiff, San Jacinto Rice Company, instituted this suit in the district court of Harris county, Tex., in October, 1911, naming the following defendants: Houston Transportation Company, Buffalo Bayou Company, Galveston, Harrisburg & Houston Transportation Company, and Fay-ette Jones.

Plaintiff alleged, in substance, that it was a riparian owner of lands on both sides of the San Jacinto river, in Harris county, Tex., and about six miles from the mouth of that river; that said river was a navigable stream; .that it was engaged in raising rice, and had installed, at great expense, pumping plants, canals, and laterals necessary for that industry; that for the purpose of irrigation fresh waters were absolutely indispensable; and that salt water would ruin the crops to be irrigated, and destroy their irrigating plants. Plaintiff alleged that there are certain bars in San Jacinto river, naming and describing them, located several miles below their pumping plant, which were an impediment to the influx of salt water; that the last of these bars toward the sea was a certain Diamond Island bar, several miles in length, and reaching entirely across the river, and that this bar was absolutely essential to the protection of plaintiff’s plants from the influx of salt water; that the defendants were engaged in dredging building sand from Diamond Island bar, and hauling it to Houston for market; that, if this bar were removed, salt water would be permitted to ascend the river, doing plaintiff irreparable damage.

A temporary injunction was granted, and there was a trial before the court without - a jury in December, 1911, and January, 1912, at the termination of which trial the court dissolved the injunction, in so far as Diamond Island bar was concerned. Subsequently, at the same term of court, a new trial was granted, however, and a second trial was had before a jury on and following the 29th of April, 1912. On that date J. R. Farmer and wife, owning land on the east side of the San Jacinto River adjacent to Diamond Island bar, intervened, adopting substantially the allegations in plaintiff’s petition, and alleging, in substance, that interveners owned about 800 acres of land contiguous to and lying upon the river, which are used for grazing purposes, farming, and agriculture, and that for these purposes they used the waters of the San Jacinto river; that the' removal of Diamond Island bar would allow salt water to ascend the river, and impair the quality of the. fresh water in the river to such an extent that it would deprive it of its use for domestic purposes, stock raising, and agriculture; and that they would thus be done serious irreparable injury.

The defendant answered, in substance, after general demurrer and general denial: That the removal of these bars would not have the damaging effect alleged. That, as sand was removed, silt and other deposits would rapidly fill its place. That the sand in the San Jacinto river was of the very finest quality for use in concrete construction and general building purposes. That the use of building sand of the character taken from the river and brought on barges to the Houston market was absolutely essential for the benefit of the public, and for the benefit of the people of Houston and Harris county, for building purposes. That Houston is a city of approximately 100,000 people, and the people of Houston are engaged actively in building a great many houses, office buildings, and various character of concrete structures, including walks, street curbing, and other cement structures, and in all such construction work, which involves an expenditure of more than ⅞1,000,000 annually, approximately, San Jacinto river sand is constantly' used, and is absolutely necessary. That, in order to make the necessary concrete constructions, it is essential and indispensable to have clean, sharp sand, free from foreign elements, and the only place that this sand can be had for use in Houston and vicinity, and brought to market at prices which will enable consumers to purchase and use it, is the sand from the Diamond Island bar, and that it has for years heretofore been taken from that vicinity. That the plaintiff herein purchased the wild lands owned by them, and which they were undertaking to raise rice upon, with full knowledge of the condition of the river alleged by them, or at least it was their duty to have investigated these facts before investing the large sums of money they claim to have placed in this property. That the bars in the river referred to were not the natural bed of the river, but were obstructions placed there, deposits in the' river impeding navigation, distorting the channel of the river, and otherwise hindering its proper use, and plaintiff purchased the property, and undertook to develop it, with knowledge of the facts as outlined, or at least it was charged with that knowledge as a matter of law, and with a knowledge of the use to which this sand was put by the 'building public, and it would be inexcusable to allow them now, for .their own private advantage, to stop the taking and marketing of this product, and it would work irreparable and untold injury to the public, as well as the defendants, who had invested large sums of money in equipment, barges, boats, and other means of transportation, for the purpose of taking and transporting this sand to market, and their equipment would be a total loss to them if they were deprived of this privilege, and the public at large and inhabitants of Houston and Harris county would suffer irreparable injury if it were stopped, and if they were deprived of this building material. That the defendants and the people of Houston and Harris county have for more than 5 years, and more than 10 years, and more than 20 years, and for a long period of time, exercised the privilege of taking this sand from the river and bayou, and hauling it to Houston for use and for market. That during all that time the fee to the bed of the river and bay has been owned by the state of Texas. That neither the defendants nor other persons who have before it exercised a like privilege of taking and hauling this sand have ever been molested or hindered by the state or by the plaintiff or any one else in the exercise of that privilege. That the long-continued use, and enjoyment, and exercise of this privilege by the public for the periods of years aforesaid has been open, notorious, and uninterrupted, and has been such as, in law, to amount to an easement of right or privilege, and to conclusively establish the presumption of a grant of this right or privilege from the sovereignty, and defendants plead this easement by way of limitation, and as a presumed grant against the plaintiff’s right of action. That defendants proceeded in this matter under a permit issued by the proper authorities of the state of-Texas authorizing the removal of this sand. That the state of Texas is the owner of the fee to the bed of the San Jacinto river. That as such the state has the right, and it is its duty, to sell and dispose of this sand and other material in the bed of the river to persons wishing to buy the rights of the state; it merely being the duty of the state to see that in the removal of same the beds of oysters and the fishing grounds are not destroyed or injured, or that navigation is not hindered, or the channel of the river impeded, for the purposes of navigation. That this defendant is not a trespasser, but is lawfully exercising this right, not only under authority from the state of Texas, but by virtue of a permit granted to it by the Department of War of the government of the United States, customary in the case of removing materials from the bed of navigable waters; and that the plaintiff in this cause purchased this property, and undertook to develop its rice field, with full knowledge of the state and federal governments’ rights in the premises, and with full knowledge of the easement the public has acquired in these matters, as averred in the last preceding paragraph, and subject and subordinate to the rights of the state and federal governments to grant permits for the removal of this sand, and of the state and federal governments to dredge and straighten its channel, or improve it for the purposes of navigation, and therefore cannot complain that these bars, which were an impediment to navigation, are being removed from the river by either of these governments, or by persons acting with the permission of one or both of said governments.

Upon the second trial, the court submitted the case in the form of special issues to the jury; the issues submitted and the answers being as follows:

“Special issue No. 1: Do you believe from a preponderance of the evidence that, if Diamond Island bar is removed from the San Jacinto river, it is reasonably probable that salt water will, under ordinary and usual conditions of tides in and weather on said streams, at the different seasons of the year, be permitted to ascend in greater quantities or more frequently than it now ascends said river with said bar in the same, to the land of the interveners situated between Bear Bayou and Diamond Island bars, and to such an extent as to cause interveners material injury to the use of said water for irrigation, domestic, or stock-raising purposes, if Diamond Island bar is permitted to remain in said river? For your answer to this question, you will say, ‘Yes,’ or ‘No,’ as you find the facts to be.”
‘‘Special issue No. 2: Do you believe from a preponderance of the evidence that it is reasonably probable that, if Diamond Island bar is removed from the San Jacinto river, that salt water, under the ordinary and usual conditions of tides existing in and weather on said stream at the different seasons of the year, will be thereby permitted to ascend said stream to that part of the lands of in-terveners fronting on said river above Bear Bayou bar, when the salt water would not probably, under the same conditions, ascend said stream to said interveners’ land, if said bar was not removed, and that said salt water so ascending would in reasonable probability pollute the waters of said stream opposite that part of interveners’ land above Bear Bayou bar to such an extent as to materially injure the interveners in the use of said water for irrigation, domestic, or stock-raising purposes? For your answer to this question, you will answer, ‘Yes,’ or ‘No,’ as you find the facts to be.”
“Special issue No. 3: Do you believe from a preponderance of the evidence that there exists a reasonable probability that, if Diamond Island bar is removed from the San Jacinto river, salt water will be thereby permitted to ascend said stream to the land of the plaintiff fronting on said stream, under the ordinary and usual conditions of tides existing in and weather on said stream at the different seasons of the year, when salt water would probably not, under the same conditions, ascend said stream to said point if said Diamond Island bar is not removed, and that said salt water so ascending would in reasonable probability pollute the waters of said stream opposite plaintiff’s land to such an extent as to materially injure plaintiff in the use of said water for irrigation or domestic purposes? For your answer to this question, you will say, ‘Yes,’ or ‘No,’ as you find the facts to be.”
Answer to special issue No. 1: Yes.
Answer to special issue No. 2: No.
Answer to special issue No. 3: No.

Upon these answers the court rendered judgment against the San Jacinto Rice Company, dissolving the injunction that had theretofore been granted, but granted.a permanent injunction in favor of the interven-ers,' J. R. Farmer and wife. From this judgment, the plaintiffs in error, defendants below, have prosecuted this writ of error.

The first assignment charges that the court erred in overruling the plea of mis-joinder, interposed on behalf of all the defendants against the petition of the inter-veners, J. R. Farmer and wife, because their pleading did not show any right on their part to prosecute this action jointly with the San Jacinto Rice Company, because not being a proceeding in which it is contemplated an intervention could be filed, since the injunction was granted the San Jacinto Rice Company under a bond given by that company in December, 1911 and it having continued in force from that time on the prayer of said company, and under the bonds given by it, the interveners not having given bond, nor having been properly made parties to any of the aforesaid pleadings; the proposition being that the land of interveners is situated several miles below that of the original plaintiff, and not owned in common, and, if inter-veners had any cause of action because of the threatened invasion of their rights, it was one they should have asserted in an independent suit, and not one which they can maintain by intervention in this suit.

The rule is that, to confer upon J. R. Farmer and wife the right to intervene in this suit, they must have such an interest in the subject-matter of the litigation as makes it necessary or proper for them to come into the case for the preservation of that right. The land of the interveners and that of the original plaintiff immediately adjoin, and are upon the San Jacinto river, and each has the same rights to have the waters flow, and to prevent pollution; they have a common complaint against the defendants for an injury of the same kind inflicted by the same acts. There can be no reason why they should not be allowed in this suit to adjudicate all the matters growing out of the alleged wrongful acts of which complaint is made, and against which the injunction is sought.

The second assignment of error cannot be considered, because it complains of the ruling of the trial court upon the rejection of certain evidence, and there is no bill of ex-heptions approved and filed as required by the rules. Smyer v. Ft. Worth & Denver City Ry. Co., 154 S. W. 336, and cases there cited.

(a) Under the various assignments, the appellants assert the right to remove the bar by reason of the statute of ten-year limitation; (b) that plaintiffs showed no right to the injunction prayed for, because they (plaintiffs) have shown no right to the use of the waters for any of the purposes claimed by them, irrigation, etc., because the control of the waters has never passed from the state of Texas; (c) because the evidence showed that the water was salty above the bar proposed to be removed under ordinary conditions with the bar intact, and that the court erred in refusing a special charge submitting the question to the jury; (d) because the evidence showed that the bar, if removed, would re-form, and that the court erred in not submitting this question to the jury; (e) because no evidence of such use of the land for rice culture and domestic use as would justify injunction; and (f) because plaintiffs did not show that they would be materially and irreparably injured.

It is practically undisputed: That the plaintiffs are the owners in fee simple of the lands described in the petition, being about 800 acres of land fronting about 4½ miles upon the San Jacinto river, all on the water shed and drain into the river. Inter-veners live upon the land, which is fitted for rice culture, etc., and that, if the land is used for such purposes, it is necessary at certain seasons of the year to pump fresh water upon said lands. That only fresh water is suitable, and salt water injurious. That in-terveners are raising stock, and the river is their source of water supply for such stock, and that pure water, free from salt, is necessary therefor. The said San Jacinto river and Buffalo bayou merge at Lynchburg, and together form a stream commonly called the San Jacinto river, and from there to Morgan’s Point, at which point the body of water so formed is called San Jacinto Bay, and said bay joins at Morgan’s Point with what is known as Trinity or Galveston Bay, which said bay joins the Gulf of Mexico. San Ja-cinto Bay, Galveston or Trinity Bay, and the Gulf of Mexico are bodies of salt or sea water wholly unfit for irrigation purposes, or for domestic or natural uses and stock-raising purposes, and are destructive of all kinds of crops, especially for rice crops, and injures the land when placed thereon for irrigation purposes. The San Jacinto river is affected by the tides of said bays and gulf for a distance of about 20 miles above Lynch-burg, and about 6 miles above interveners’ land. That in the said San Jacinto river, at a point opposite and in front of interven-ers’ lands, and above Lynchburg, where said river merges with said Buffalo bayou, are and always have been located two sand bars or elevations in the bottom or bed of said stream, naturally deposited and existing, and composed mainly of sand. That the first one of said bars opposite interveners’ lands is known as Bear Bayou bar; the second of said bars opposite interveners’ said lands is known as Diamond Island bar. The natural result and effect of said bars in said rives is to form a complete barrier, and protect the river above same and opposite the lands of the interveners from the influx of salt and sea water, especially during high or flood tides, which occur at frequent intervals during the pumping or irrigation season. That, with the existence of said sand bars in said river in their natural condition, the waters of said stream above same and opposite interveners’ lands are and have been thereby kept fresh and free from salt and other minerals, making it adaptable to irrigation and for natural and domestic uses and stock-raising. That the salt or sea water is heavier than fresh water, and flows to the bottom or bed of the stream, and, when same comes in contact with said sand bars, is prevented from going further up said streams except in small quantities when unusual storms occur. That prior to the time that defendants began to dredge sand out of the San Jacinto river there existed in said river another or third sand bar, lying between Diamond Island bar and the town of Lynchburg, known as the Jack Norton bar, which bar the defendants have entirely removed, and, in copsequence and as the direct result of such removal, salt water at every flood tide is projected up said stream to the lower end of Diamond Island bar in a manner and to an extent that never occurred prior to the removal of the Jack Norton bar. That defendants were then engaged with large tugs and dredge boats in removing, sand from the lower end of the Diamond Island*, bar, and are fast removing the said Diamond; Island bar, and intend to and are now proceeding to continue the dredging operation-until all of the said Diamond Island bar is removed, and also intend to dredge and-, remove all the sand from the said Bear-Bayou bar, and are now prosecuting the work, and have stated their intention to continue their operations until both the Diamond Island bar and Bear Bayou bar are removed.

The jury found: That, if the defendants remove the said Diamond Island bar and Bear Bayou bar, or either of them, the necessary and certain result thereof will be to-cause and permit salt water to be discharged into San Jacinto river above the point where said bars are now located and opposite interveners’ land and above same, and thereby pollute the fresh waters of the stream, and render the same unfit for purposes of irrigation, stock raising, and natural and domestic uses. That the lands of in-terveners without a supply of fresh water are of small value, but the said lands in-connection with the riparian rights incident thereto are of great value, and such riparian rights constitute a material part of the value of their lands, and, if defendants are permitted to remove the said bars, or either of them, interveners and their tenants will be irreparably injured and damaged in that the riparian rights, as above described, will be thereby destroyed and rendered worthless, and the greater part of the value of said lands, as dependent upon such riparian rights, will be destroyed, -and interveners would be forced to abandon said land as their home, because of inability to use said waters for drinking purposes, watering stock, and for other natural and domestic purposes-.

Riparian rights are property, which will be protected by the courts. And to a riparian proprietor, whose right to the use and enjoyment of the flow of a stream of pure and wholesome water free from pollution has been actually, or is about to be, invaded, injunctive relief will be granted, where such invasion, or threatened Invasion, will be continuing, and the extent of the injurious consequences is contingent and of doubtful pecuniary extent.

It is true that the owner of the shore of a navigable stream has no- ownership in the water and no greater right than any other person as between himself and the commonwealth ; but he has the right to the use as a public highway, and may divert its waters for domestic purposes, and, to the extent of not interfering with the rights of the public to navigate, may divert the waters for irrigation. Mills v. U. S. (D. C.) 46 Fed. 738, 12 L. R. A. 678, and cases there-cited.

If the state or the United States were •removing the bar for the benefit of navigation, and this controversy arose between such appellees herein, the appellants’ contention that the state had the fee and all rights to control or remove, etc., might be well taken, but then, in most cases, subject to remuneration to owner of land if land be taken or destroyed. But the necessities of one man or any number of men cannot justify an injury to or the destruction of another’s property, without his consent and without remuneration, so, if it be true, as alleged by appellants, that if this injunction be perpetuated the people of the city of Houston will be compelled to pay more for sand in building up their city, • on the other hand, it is equally true, according to the finding of the jury, that if the appellants are permitted to remove the bar in question that appellee’s land will be rendered materially less valuable and possibly, utterly worthless.

But plaintiff also claims it has acquired by prescription the right to take the sand and to thereby remove the bar. As to the taking of sand the right might be acquired by prescription, and, if the bar had been removed, and appellee’s lands had been effected by the flood waters for ten years, the prescription right would have been acquired, for in that case there would have been a wrong which the appellees could have redressed by suit, and, from their delay in suing, the presumption of a grant would have arisen, but not so in this case. The ap-pellees had no property rights in the sand, and any taking thereof by the appellants up to the time that it amounted to a removal of the bar to the extent that it permitted the salt water to flow up to appellees’ land, to its injury, inflicted no wrong upon appellees. Being not inimical to their rights, it raised no presumption against them, so appellees could not have prevented or interrupted the taking of sand by appellants by any legal proceedings until in some way such act of taking threatened to or actually worked injury to their property rights. Irrigation Company v. Vivian, 74 Tex. 171, 11 S. W. 1078.

The position of appellees’ land upon the stream gives them the right to the use of the waters thereof to the extent above indicated, and it being undisputed that they now live upon the land, and use the waters for domestic purposes for stock, etc., is sufficient to authorize them to invoke the processes of the courts in preventing appellants from doing anything which would result in the pollution of the waters of the stream to their injury; and the fact that the bar would, in time, by reason of the action of the flood waters in the river against the tidewaters from the gulf, re-form could be no reason why the appellees should not have the relief prayed for, for the time intervening between the time of removal and the time it should reform.

The appellants’ fifth assignment cannot be considered, because it complains that the court refused to submit an issue to the jury, and the record does not disclose that any special charge was offered and requested to be given.

Believing that all the material questions proposed in appellants’ brief have been disposed of by the discussion above, the assignments are overruled without mentioning each specifically, and the judgment of the lower court is affirmed.