author: FLY, C. J.

text:
    DE BRUIN et al. v. SANTO DOMINGO LAND & IRRIGATION CO. et al.
    (No. 5830.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 11, 1917.
    Rehearing Denied May 9, 1917.)
    1. Tkial <§=>390 — Findings—Time to Pile.
    Under Vernon’s Sayles’ Ann. Cm St. 1914, art. 2075, requiring findings and conclusions to be filed within 10 days after court adjourns, additional findings cannot be filed after such 10-day period.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 913.]
    2. Appeal and Error <§=>274(7) — Exceptions to Findings.
    Where the record contains a statement of facts, the court’s findings «nay be attacked under an exception to the judgment.
    [Ed. Note. — For other cases, see "Appeal and Error, Cent. Dig. §§ 1638-1640, 1643.]
    3. Appeal and Error <§=>1052(5) — Harmless Error — Admitting Evidence.
    Any error against plaintiff in admitting evidence bearing only .upon defendant’s cross-action is harmless, where no recovery was had on such cross-action.
    [E"d. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4175.]
    4. Mortgages <§=>270 — Sufeicienct of Evidence-Notice of Lien.
    Evidence held to sustain a finding that mortgage bonds were purchased without notice of unrecorded mechanic’s lien' claims, where the bonds recited they were issued to repay a loan.
    [Ed. Note. — For other cases, see Mortgages, Cent. Dig. §§ 60S, 609.]
    5. Mechanics’ Liens <§=>116 — Proceedings to Perfect1 — Necessity.
    Under Const, art. 16, § 37, giving mechanics’ liens to certain persons, and directing the Legislature to provide for their enforcement, which was done by Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 5621-5639, compliance with the statute is unnecessary as between the owner and claimants, but must be observed as to third parties without actual notice that the material or labor was furnished. -
    [Ed. Note. — For other cases, see. Mechanics’ Liens, Cent. Dig. § 160.]
    6. Mortgages <§=>258 — Notice of Lien — What Constitutes.
    .That a mechanic’s lien claimant was in possession of property when mortgage bonds secured by it were purchased does hot charge the purchaser with notice. of the outstanding lien claims, unless he -actually knew - of such possession.
    [Ed. Note. — For other cases, see Mortgages, Cent." Dig. §§ 689-691.]
    7. Mechanics’ Liens <§=>280(1) — Admissibility of -Evidence — Waiver of Lien.
    In action to enforce a mechanic’s lien, testimony by claimants that they did not intend to waive the lien when accepting a chattel mortgage is inadmissible, since the mortgage may have operated as. a waiver as a matter of law.
    [Ed. Note. — For other cases, see Mechanics’ Liens, Cent. Dig. §§ 557, 558.]
    Appeal from. District Court, Cameron County; W. B. Hopkins, Judge.
    Suit by J. C. De Bruin and others against the Santo' Domingo Land & Irrigation Company and others. From a judgment adjusting the rights of various parties, J., C. De Bruin and A. M. Lockett & Co. appeal.
    Affirmed.
    Frank C. Pierce, Webster & Green, and F. W. Seabury, all of Brownsville, for appellants. Graham, Jones & George, of Brownsville, and J. R. Monroe, of Rio Grande City, for appellees.
   FLY, C. J.

This suit was instituted by J. C. De Bruin against the Santo Domingo Land & Irrigation Company, the Bankers’ Trust Company, J. G. Fernandez, W. L. Harding, A. M. Lockett & Company, Limited, and John T. Devine. The last-named died, and' his widow was made a party. She was the sole heir of John T. Devine, and executrix of his last will and testament. • The suit began in Starr county, but, by agreement, was changed to Cameron county. The suit was based upon two contracts between De Bruin and the irrigation company, one being a contract for the construction for the company of a portion of its pumping plant and system of irrigation for 1,200 acres of land belonging to the company, and he claimed for the contract $9,096 and $2,442.81 for extra work and material ; the aggregate being $11,538.81, which, less a credit of $8,472.60, left a balance of $3,066.21, of which a recovery was sought on that contract. The other contract was a supplement to the first, and released De Bruin from the work already done, and obligated the company to complete the work, using the tools and outfit,' and he claimed that the company appropriated his tools and outfit, and that he was entitled to their value, in the sum of $1,459.45, and also $500 for profits. He asserted a contractor’s lien on the company’s pumping plant and irrigation system, and prayed for a foreclosure of the same. John.G. Fernandez and Mrs. De-vine claimed to own $37,500 each of the bonds of the irrigation company, secured by a deed of trust of date September 3, 1912, upon all the properties of the company, in which the Bankers’ Trust Company, also made a defendant, was the trustee. A. M. Lockett & Co. claimed a lien on the properties of the company, dated July 20, 1912, for an amount due on the sale and installation of pumping machinery and other matters. W. L. Harding claimed a subcontractor’s lien on the property. Fernandez and Mrs. Devine also claimed to own the property of the irrigation company by virtue of a" purchase under the execution of the trust deed by the trustee. They claimed that they had purchased the bonds of the company for value and without notice of any liens, and also claimed subrogation under the liens by reason of the money paid by them for the bonds having been paid to the contractors. The irrigation company admitted the justice of the claims of Fernandez and Devine, and also admitted the debt of Lockett & Co., but denied the existence of a lien, to secure ' the same, and also denied the claims of De Bruin, an'd filed a counterclaim against him for damages for delay in performing his contract.

The cause was tried without a jury, and judgment rendered in favor of De Bruin for $1,459.45, for the value of his tools and outfit, in favor of A. M. Lockett & Co. for $7,-522.81, against the irrigation company, foreclosure of liens being denied, in favor of the company as against Harding; a dismissal being entered as to the Bankers’ Trust Company, relief being denied the company on its cross-action against De Bruin, and Fernandez and Mrs. Devine were quieted in their title to the property. This appeal was perfected by De Bruin and A. M. Lockett & Co.

The first assignment of error of De Bruin assails the action of the court in refusing to give the additional findings of fact requested by appellants. The complaint is that appellants requested the court, on June 27, 1916, to file his conclusions of fact and law; that the court adjourned on June 30, and that the conclusions were not filed until July 10, 1916, the last day on which they could be filed, and thereafter, when an application for additional findings was presented, the trial judge refused to find further facts. The law is plain and unequivocal that only 10- days after adjournment of the court shall be allowed in which to file findings of fact and conclusions of law. Yernon’s Sayles’ Stats, art. 2075. The court complied with that law fully in filing the conclusions of fact and law. The court had no authority after the expiration of the 10' days to file additional findings of fact, any more than he would have had authority to file all of the findings of fact after the statutory time. State v. Pease, 147 S. W. 649. There is a statement of facts in the record, and appellants could attack the findings of fact under their exception to the judgment below. Voight v. Maekee, 71 Tex. 78, 8 S. W. 623; Bond v. Garrison, 59 Tex. Civ. App. 620, 127 S. W. 839; Walsh v. M. E. Church, 173 S. W. 241. The findings of fact cannot be'disregarded because the trial judge refused the additional findings of facts out of time.

The second assignment of error of De Bruin complains of certain evidence of D. D. Jones as to what crops the irrigation company would have raised, if De Bruin had not delayed in doing the work for which he had contracted. If the evidence was improperly admitted, it could not have injured De Bruin, for the reason that the company did not recover on its cross-action, and the evidence bore on the cross-action alone. The assignment is overruled. The court found that the company had- fully paid appellant, De Bruin, for all work done by him, and the further finding that the damages of .the company were as great as any sum owing do De Bruin was unnecessary, and did not affect the positive finding that he had been paid in full. Nothing was allowed as damages to the company, but it was decreed that it was not entitled to damages. The judgment totally fails to disclose any offset of damages against De Bruin’s claim, and the second, third, fourth, and fifth assignments of error are overruled.

The sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments of .error are overruled. The circumstances were sufficient to justify the court in finding that Fernandez and Devine bought the bonds for value, without notice of any liens held by the appellees. The mortgages or liens were not on record, and the testimony fails to indicate that there was actual notice of them. The fact that De Bruin was working on the land was not known to Fernandez at the time he bought the bonds for the bank; in fact, they were bought before De Bruin’s contract was made. If the bank had knowledge of the existence of any liens, it must have been obtained through Fernandez, and he swore that he had no such knowledge of the liens of appellants when he bought the bonds. The evidence failed to show that any one connected with the bank knew of the existence of the liens, and therefore Fernandez could not have been charged with knowledge through the bank. There was no recital in the bonds that any liens existed on the property, but merely that the bonds were issued to obtain money to repay a loan contracted to erect an irrigation plant. There was nothing in the recitals giving notice that the contractors had liens on the property. Fernandez 'denied any conversation with Lockett before the loan was made to the irrigation company, and the trial judge exercised his undoubted prerogative of believing Fernandez in preference to Lockett.

The state Constitution (article 16, § 37) gives a lien to mechanics, artisans, and ma-terialmen, of every class, upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor, and instructs the Legislature to “provide by law for the speedy and efficient enforcement of said liens.” In compliance with that constitutional requirement the Legislature passed the act embodied in chapter 2, title 86, articles 5621 to 5639, inclusive, and in that act the mode and method of fixing and preserving the lien is fully and clearly set forth. The act was amended by the Thirty-Fourth Legislature, on March 31, 1915 (Gen. Laws 1915, pp. 223-225), but the amendments have no bearing on this cause, even if the work performed on the irrigation plant had not been performed long before the amendments were enacted. No effort was made by appellants to comply with any provision of the statute in regard to the kind of liens claimed by them, and unless the Constitution is self-acting and fixes the lien, the lien did not exist.

Undoubtedly, as between the persons named in the Constitution and the owner of the property, the lien is fixed hy the Constitution ; but it was clearly contemplated that its efficacy and enforcement was made to depend on laws enacted by the Legislature. As said in Johnson v. Improvement Co., 88 Tex. 505, 31 S. W. 503:

“This provision, as we have frequently held, gives the lien, and simply makes it the duty of the Legislature to provide for its enforcement. It is manifest that this differs materially from other provisions found in our Constitution which confer a right or a jurisdiction to be exorcised ‘under such regulations as may be provided by law.’ It may be conceded that, from the necessity of the case, it must have been contemplated that, in providing for the enforcement of the laws given by the ‘section,’ the Legislature should have the power to make such reasonable regulations aé are requisite to protect the rights of all persons who may have an interest in the contract or in the property.”

This was said in upholding the law requiring materialmen to give notice to the owner and filing the account. This was held to'be a reasonable requirement to give the owner the opportunity to protect himself. The same ruling was made by the present Supreme Court in Bullard v. Norton, 182 S. W. 668, Bullard v. Lanius Pressed Brick Co., 187 S. W. 1199, and June v. Doke, 35 Tex. Civ. App. 240, 80 S. W. 402.

In the case of National Bank v. Taylor, 91 Tex. 78, 40 S. W. 876, 966, it was held that as between the owner and the contractor the Constitution fixed the lien, without any notice, filing of claim, or any other act on the part of the contractor; but, so far as innocent subsequent purchasers or mortgagees and lienholders are concerned, the statute must be complied with in order to fix the lien. It was held, however, that actual notice of the lien would be sufficient, without recorded notice, and that where a subsequent lienholder knew that the contractor was at work on the premises when he loaned the money and took his mortgage he would be charged with notice.

The contract between Lockett and the irrigation company was made on August 1, 1912, and that between the company and De Bruin was made on or about October 16, 1912. On March 20, 1913, the notes to Lockett & Oo. were executed. De Bruin’s plans and specifications were made on October 17, 1917. The notes given to Lockett & Co. were secured by a mortgage on the property sold by Lockett & Oo. to the irrigation company, which, was acknowledged on August 25, 1913. The note for $20,800, afterwards assigned to Fernandez by the Merchants’ National Bank, was dated October 3, 1912, and was secured by $37,500 worth of bonds.

So far as A. M. Lockett & Co., Limited, is concerned, the fact that De Bruin may have been at work on the premises of the irrigation company at the time that the bonds were transferred can be of no benefit. Any notice given by such occupancy of the land by De Bruin could not have informed any one that A. M. Lockett & Oo. was entitled to a constitutional lien for material furnished. The circumstances would seem to indicate that A. M. Lockett & Oo., by taking the chattel mortgage on the property, waived any lien given hy the Constitution. The facts indicate that there was no intention to rely upon the mechanic’s or materialmen’s lien, but to rely on the chattel mortgage, which was not filed for record until August 29, 1913. The notes were executed for the material furnished by Lockett & Co. long after the bonds had been transferred to Fernandez by the irrigation company and were made payable at dates indicating that no constitutional lien was depended upon to secure the money, and each one of them provided that the title to the property should remain in Lockett & Co. until all the notes were paid off and discharged. No attempt was made to comply with article 5622, Rev. Stats., the notes being made payable at a time when the time for a materialman to act could not under the statute fix a lien on the property. Articles 5621 and 5622 require any one who may furnish material to perform certain acts in order to fix the lien. As said by the Supreme Court in Berry v. McAdams, 93 Tex. 431, 55 S. W. 1112:

“Assuming, however, for the purposes of this case, that the Constitution does give a lien in favor of the class of persons to which appel-lee belongs, it at the same time requires of the Legislature to enact laws for the enforcement of such lien, which has been done, and we hold that the laws above referred to are within the powers of the 'Legislature over the subject, and that a failure by the appellee to comply with their requirements defeats his lien claimed under the Constitution. In other words, it is a reasonable and just regulation for the efficient enforcement of the lien of the materialman, which he must comply with in order to avail himself of the benefit of the provisions of the Constitution.”

While the court was considering a case in which the material was furnished to a contractor, it holds that the Legislature had power to provide the manner in which the constitutional lien could be enforced by a ma-terialman. In ' the case of James v. St. Paul’s Sanitarium, 24 Tex. Civ. App. 664, 60 S. W. 322, the court said:

“It is not contended that appellant complied with the statute in attempting to fix his lien; but it is insisted that the Constitution gives a lien in favor of materialmen, and that the stat‘ute which regulates the manner in which the lien shall be fixed is unconstitutional, in that it is so restrictive as not to afford an efficient method of protecting and enforcing the lien given by the Constitution. Since the trial of this cause the Supreme Court has passed on the question, and decided it against the contention of appellant” — citing Berry v. McAdams.

To the same effect is Johnson v. Griffiths, 135 S. W. 683, and Faber v. Muir, 27 'Tex. Civ. App. 27, 64 S. W. 938.

We deduce from the different decisions of this state that the Constitution gives a lien to the persons named thereon, and that, as between the owner of premises on which labor is performed, or for which material is furnished, and those persons, the lien arises and may be enforced without the aid of the statute, but as to third parties, who have not actual notice of the labor having been performed or the material furnished, the lien is not enforceable unless the statute has been complied with. The evidence in this case shows that neither Fernandez nor De-vine had any actual notice that liens for labor or material were in existence. They were not charged with notice of resolutions passed by the board of directors of the irrigation company, with which they had no connection whatever. The language of the bonds, to the effect that they were issued “for the purpose of refunding a loan contracted for the installation of an irrigation system now in course of construction upon the lands embraced in said mortgage,” did not give notice of liens, but, on the other hand, would give the impression that the money to pay for fhe installation of the plant had been borrowed, and would raise the presumption that it would be used for that purpose.

The mere fact that De Bruin may have been in possession of the premises at the time that Devine obtained the bonds would not be sufficient to put the latter upon notice, unless he had actual knowledge of such possession; and if appellee Devine did have actual knowledge of the possession of De Bruin, it would not matter, under the facts, which show that De Bruin was paid for all the work done by him under the contract under which he was working when De-vine bought the bonds. He has no lien, because he has been fully paid, as found by the court.

. It is utterly immaterial when the inception of the lien of Lockett & Co. may have arisen, as between him and the irrigation company, if appellee had no notice of it, which they had not. The fourteenth assignment is overruled.

The fifteenth, sixteenth, seventeenth, nineteenth, and twentieth to thirtieth, inclusive, assignments of error complain of the refusal of the court to file additional findings of fact. That is matter disposed of under other assignments, and these are overruled. There is a statement of facts, and appellants could have presented additional facts on any matter by appropriate assignments of error. ■

The court was authorized from the circumstances to find that $37,500 worth of the bonds were hypothecated to John T. Devine about April, 1913, to secure a loan made by the said Devine to the irrigation company. The first, second, third, and fourth assignments of Lockett & Co. are therefore overruled.

All the other assignments of error .of Lockett & Co., except the thirty-ninth, have been disposed of under assignments of De Bruin, and they are all overrule'd. Most of them are grouped with others presenting-different matters, and should not be considered. The court properly refused to allow the witnesses Lockett and Pierce to testify to the matter set out in the thirty-seventh assignment of error. The court properly refused to allow Lockett and Pierce to testify that there was no agreement to waive the materialman’s lien, when the chattel mortgage was executed and delivered. There may not have been any such agreement, and still as a matter of law there might have been a waiver. It would have been error to-have admitted such testimony.

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


source: Caselaw Access Project

author: RASBDRX, J.

license: Public Domain

text:
    McDOUGLE, CAMERON & WEBSTER v. PENNINGTON.
    (No. 7764.)
    (Court of Civil Appeals of Texas. Dallas.
    April 21, 1917.)
    1. SAXES 1⅜^201(7) — CONTRACTS—ACCEPTANCE OE Delivery.
    Where a contract for the purchase of wood provided that, when the wood is delivered and ricked at the place selected, the buyer shall accept the same and pay the price agreed, title did not pass to the buyer until it accepted the wood, since the provision for acceptance contemplates the right to accept or reject, and when anything- remains to be done between the parties in the sale of personalty before delivery can be-made, the title does not pass.
    [Ed. Note. — Eor other cases, see Sales, Cent. Dig. § 540.]
    2. Execution <§=> 194(3) — Claims by Third Persons — Evidence—Sufficiency.
    In the statutory proceeding of the trial of the right of property concerning wood attached by defendant as the property of a third person, and claimed by plaintiff to have been delivered to it pursuant to a contract to purchase the wood from the third person, evidence held to sustain a jury finding that plaintiff refused to accept the wood when delivered pursuant to the agreement.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 571, 573, 574.]
    3. Appeal and Error <®=ol008(l) — Review-Findings.
    The findings of the trial judge are treated by the appellate court as are the findings of the jury.
    [Ed. Note. — For other cases,, see Appeal and Error, Cent. Dig. §§ 3955, 3909.]
    Appeal from Rockwall County Court; J. W. Reese, Judge.
    Proceeding by McDougle, Cameron & Web--ster, a corporation, against W. C. Penning-ton.. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Short & Feild, of Dallas, for appellant., A. H. Mount, of Dallas, for appellee.
   RASBDRX, J.

This is an appeal from the judgment of the county judge awarding to appellee in the statutory proceeding of the-trial of the right of property 66 cords of firewood.

Upon motion of appellant the trial judge filed conclusions of fact, those material being in substance these: Aikin Thompson, joined by G. N. Davis, agreed in writing with appellant, a private corporation, on March 24, 1915, to “sell and convey” to the appellant 100 cords of wood delivered and ricked on the right of way of the Missouri, Kansas & Texas Railway Company at Royse, Tex. Appellant agreed to accept the wood as it was delivered and ricked and to pay therefor $3.25 per cord by crediting said Thompson for the amount on his indebtedness to appellant. Thompson at the time the contract was made had an arrangement with Davis to cut the wood from his land under the terms of which Davis was to have no interest in the wood after its delivery. The 66 cords of wood in controversy were delivered and ricked upon the right of way of the railroad company between July 15, 1915, and October 6, 1915. On December 4, 1915, just after a store owned by Aikin Thompson was destroyed by fire, an agent of appellant visited Royse, inspected the wood, refused to accept it, repudiated the contract, and demanded that appellant’s debt be paid out of Thompson’s fire insurance. On December 6, 1915, upon request of appellee, a constable of Rockwall county levied execution thereon issued upon a judgment recovered by appellee, Pennington, in the county court of Rockwall county against Aikin Thompson April 23, 1914, for $143.75, interest and costs, taking possession of same, his return showing the levy was on “about” 100 cords of wood. On December 16, 1915, appellant under the statutory proceeding of the trial of the right of property made claim to same. Appellant never measured, approved, or accepted the wood so delivered until after filing his oath and bond in this proceeding, at which time there was 66 cords of wood delivered, which was of an inferior character and worth only $2.16% per cord.

Every fact found by the court necessary to sustain the judgment is challenged by appellant as being in effect without support in the evidence. Such being the situation, it becomes necessary for us to examine the evidence to ascertain whether there is deducible therefrom the facts found by the court. In that connection the court, upon the facts found by him, concluded as matter of law that, due' to the repudiation by appellant’s agent of the wood on December 4, 1915, the title to same was vested in Aikin Thompson when appellee caused execution to be levied thereon, December 6, 1915, and hence such levy fixed a lien thereon securing appellee’s judgment. Such we understand to be the ground upon which the county judge placed his decision. The court’s finding that appel-lánt refused to accept the wood and repudiated the contract with Thompson rests upon the testimony, of W. H. Adams, from which thé following facts fairly appear: About December 1, 1915, in Royse, Mr. Morgan, connected with appellant corporation, approached Adams while in conversation with another and engaged him in conversation, inquiring if Adams had seen Aikin Thompson, who had promised him to pay appellant the debt he owed. Adams expressed surprise, stating that Thompson claimed that he had sold appellant the wood in controversy which paid his debt. Morgan said he would not accept the wood, but was going to have appellant’s debt out of the insurance on Thompson’s store, which had just been destroyed by fire, and that the wood was inferior. The policy of insurance had been assigned to the witness Adams, in security of a debt he had against Thompson, upon learning which Morgan indicated he would make Adams trouble by placing proceeds in bankruptcy, but that he would make it of interest for Adams to settle the matter out of the insurance money by turning over to Adams the wood and a mortgage on a house. Adams said he would consider the matter, if Thompson would transfer the wood, and agreed to go to Dallas on the following Wednesday and close the matter after seeing Thompson. Adams saw Thompson and virtually agreed with him on the basis suggested. Morgan denied making the statement to Adams that he would not accept the wood from Thompson or that he was looking to the insurance money for his debt. He admits, after learning that Thompson had assigned his insurance policy to Adams, telling Thompson that he would turn him back the wood if he would pay a certain amount, or his debt, out of the insurance money, and that all he said to Adams was to repeat his offer to Thompson. The full amount of the wood never was delivered, and the approximate value of that delivered was $2 per cord. The only measurement of the wood by appellant was after levy of execution.

Appellant’s first contention is that, when the wood was delivered, ricked upon the railway right of way, title passed automatically to it. We shall not attempt a discussion of the general rule and its variations on the subject of when the title passes to personal property, save to say that, when anything remains to be done between the parties in the sale of personalty before delivery can be made, the title does not pass. The general rule and its variations was fully and ably discussed in Cleveland v. Williams, 29 Tex. 208, 94 Am. Dec. 274. It is clear, it seems to us, that in the present case title did not pass to the wood upon the mere execution of the contract between Thompson and appellant. 'Everything remained to- be done in order to place the wood in a deliverable condition. It had to be cut or sawed and delivered ricked on the right of way. But ‘it is argued that it was so delivered. As much is conceded. Yet we do not believe the title passed even then. The contract recites that when the wood is delivered ricked at the place selected appellant shall accept same and pay the price agreed. This contemplates, in our opinion, the right to accept or reject same. Conceivably several conditions must exist which would justify appellant in rejecting the wood. Appellant agreed to pay $3.25 per cord for the wood. Impliedly . the wood delivered would have to be reasonably worth the sum in the market. Appellant was entitled to ascertain by measurement the amount of the wood delivered before accepting it. It is true that the contract, which is but a brief memorandum, does not expressly provide the matters indicated. But it does say appellant shall, after delivery, accept same and pay the agreed price. If the contract does not mean what we say, there was no necessity of providing for acceptance after delivery. It was never contemplated by the agreement that appellant should pay $3.25 a cord for wood worth only $2 per cord; yet such would be the result in this proceeding if it should be held that title passed to appellant when the wood was delivered ricked on the railway right of way, since it is undisputed that the wood actually delivered by Aikin Thompson was of an inferior quality and worth only $2 per cord.

What we have said brings us in natural order to the proposition that the evidence is insufficient to sustain the finding of the court that appellant refused to accept the wood. In favor of the conclusion ,of the court it appears negatively that appellant never in .any manner affirmatively agreed to accept the wood until after the levy, coupled with the affirmative fact that its agent stated to Adams it would not accept it and had refused to do so. While it is true appellant’s agent denied making such statement and offered a totally different and an entirely plausible version of the conver'sation, yet it was the function of the trial court to reconcile the conflict or adopt one of the versions and not ours.

The findings of the trial judge, it is known, of course, on questions of fact, are treated by this court as are the findings of the jury.

For the reasons stated, it becomes our duty to affirm the judgment.'

Affirmed.
      ©ssFor other cases'see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RASBURY, J.

text:
    LOVE v. ROCKWALL INDEPENDENT SCHOOL DIST. et al.
    (No. 7802.)
    (Court of Civil Appeals of Texas. Dallas.
    March 24, 1917.
    Rehearing Denied May 5, 1917.)
    1.Schools and School Distbicts @=108(4) —Levy oe Tax — Bonds oe Included District — Vote oe Taxpayers.
    The directors of an enlarged or consolidated school district can levy a tax to pay the interest and sinking fund for bonds issued by an included district whose property was transferred to the enlarged district if such tax is voted by the taxpayers of the enlarged district.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent'. Dig. §§ 235, 259.]
    2. Schools and School Distbicts @=108(4) —Levy oe Tax — Vote oe Taxpayers — Purpose — “Suppokt”—“Maintenance.”
    A vote of the taxpayers of an enlarged district authorizing a tax for the support and maintenance of schools therein does not authorize the levy of a tax on the property of the enlarged district for the interest and sinking fund of bonds of an included district, since “support” and “maintenance” are synonymous and mean to hold in an existing state or condition, and in Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2S57, authorizing the trustees to submit to voters two questions, one whether they shall levy a special tax for the maintenance of schools, and another whether they shall levy a special tax for the purchase of sites and the construction of school buildings, “maintain” is used in contradistinction to debts.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 235, 259.
    For other definitions, see Words and Phrases, First and Second Series, Support; Maintenance.]
    3. Schools and School Districts @=102 — Levy oe Tax — Interest and Sinking Fund —Part oe Consolidated District.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2841, requiring school trustees to levy and collect when authorized by the voters a sufficient tax to pay the interest and the portion of the principal annually maturing of the district’s outstanding debt, the trustees of an enlarged school district not authorized by taxpayers of that district to levy a tax on all the property to pay the bonds of an included district should levy on the property of the included district the tax theretofore authorized to make such payments.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. §§ 233, 237-239, 252.]
    4. Schools and School Districts @=103(4) —Levy oe Tax — Limitation oe Amount.
    Where the property of a former school district included in an enlarged district was subject to tax to pay the bonds thereof, the amount levied against that property for the maintenance of schools should be reduced so that the total levy thereon would not exceed the constitutional limit of 50 cents on each $100 of valuation fixed by Const, art. 7, § 3, and Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2841.
    [Ed. Note. — For other cases, see Schools and School Districts, Cent. Dig. § 242.]
    Appeal from District Court, Rockwall County; W. F. Whitehurst, Judge.
    Suit by A. E. Love against the Rockwall Independent School District and others. Judgment for the defendants, and plaintiff appeals.
    Reversed and remanded on rehearing.
    A. H. Mount, of Dallas, for appellant. T. B. Ridgell, of Rockwall, for appellees.
   RASBURY, J.

In our original opinion we affirmed the judgment of the trial court in this case on the theory that the collection of the tax sought to be enjoined was levied in compliance with the rule announced in Crabb v. Celeste Independent School District, 105 Tex. 195, 146 S. W. 528, 39 L. R. A. (N; S.) 601, Ann. Cas. 1915B, 1146. Counsel for appellants on rehearing raise'-the collateral issue that, while the tax levy was authorized by the voters, it was not authorized for the purpose to which it was appropriated following the election. The proposition urged in the brief is that the power to levy and collect supplementary school taxes must be submitted to the taxpaying voters of the district. The levy of the tax collection of which is sought to be enjoined was submitted to and authorized by the voters; and, while the issue now raised was not presented in the brief, we should have anticipated same and considered it, since it is a corollary of the proposition actually urged. Accordingly we withdraw our original opinion and herewith restate and reconsider the appeal as a whole.

The appellant in the court below by appropriate pleading sought injunction restraining appellees, Rockwall independent school district, its trustees and the school tax collector, from collecting certain taxes levied against the taxable property in said district for the purpose of maintaining the public schools in said district and creating an interest and sinking fund for certain bonds theretofore voted and issued by common school district No. 2 of Rockwall county, which last-named district had been merged into and constituted a part of appellee Rockwall independent school district, and sought also a mandatory injunction requiring the trastes of Rockwall independent school district to levy a tax against the taxpayers in common school district No. 2 sufficient for that purpose. The relief sought was denied, and appellant brings the case here for review.

The facts which control the disposition of this appeal are undisputed, and those essential are in substance these: -In the year 1909 common school district No. 2 of Rock-wall county, then lawfully created and existing in the manner provided by law, voted and issued school bonds in the amount of $25,000, maturing 40 years from that date, and authorized the levy and collection of a tax of 25 cents on each $100 of valuation on all taxable property within the district with which to pay the interest on and to create a sinking fund with which to redeem same at maturity. The bonds were negotiated and the proceeds used in the erection of a school building in common school district No. 2. Thereafter, in the year 1913, the Legislature created the Rockwall independent school district, one of the appellees in this proceeding. Within the territory constituting the boundaries of the new district was all the territory formerly constituting common school district No. 2. By the act the title to all property in the new district was vested in its trustees for the use of the public free schools therein. Special Laws Reg. Sess. 33d Leg. c. 116, p. 451. The trustees of the independent or new district after its creation took over all the property of the old district, consisting of ’its school buildings and $6,139.97 of available school funds, and since and now claim control and ownership of the same. Thereafter, on July 18, 1916, the trustees of Rockwall independent school district ordered an election in that district for August 12, 1916, to determine whether the trustees should levy and collect an annual tax upon all taxable property in the district for the support and maintenance of the public free schools therein not to exceed 50 cents on each $100 of valuation of the taxable property. An election was held and the levy of the tax authorized by a majority of the property taxpayers of Rockwall independent school district Thereafter the trustees met and by resolution declared that a majority of the voters had authorized tire tax, and by the same resolution levied a tax of 35 cents on each $100 of valuation of the taxable property for the support and maintenance of the district schools and a levy of 15 cents, to pay the interest on and create a sinking fund for outstanding bonds. The only outstanding bonds were those for $25,000 voted by former common school district No. 2. The 15-cent tax so levied will produce annually approximately $1,500. To pay the interest on and provide a sinking fund for the outstanding bonds requires an annual sum of approximately $1,-900. There is now and was at the time of the levy available for said purpose $6,139.97 drawing 4 per cent, per annum interest. Said sum had been levied and collected from the taxpayers of common school district No. 2. The bonds run 36 years from the year-1916. Appellant is a property taxpayer in both the old and the new district. He voted against the tax at the election held August 12, 1916, in-the new district.

By the first assignment the issue is made that the levy of the 15-cent tax against all the taxable property in Rockwall independent school district for the purpose of paying the interest on and creating a sinking fund with which to pay the $25,000 of bonds voted by common school district No. 2 is illegal and void for the reason that those of the taxpayers who were not residents of common school district No. 2 when the bonds were voted had no voice in creating the debt. That fact alone will not prevent the taxpayers of the enlarged district taxing themselves therefor. The Supreme Court in Crabb v. Celeste Ind. School District, supra, following Eagle Lake v. Lakeside Sugar Refining Co., 144 S. W. 709, held, in effect, that when school districts are enlarged, annexed, or consolidated, the trustees of the enlarged districts are without authority to levy a tax against the taxpayers as a whole in the new district for the purpose of redeeming the bonded debt of the annexed territory without first submitting the question to a vote of all the taxpayers in the enlarged district. Such is the settled law in this state, and any tax levied counter to that rule is void and its collection may be enjoined. We do not understand the holding of the Supreme Court in that case, however, to be that all the taxpayers in an enlarged -district may in no event be taxed for the purpose of redeeming the bonded indebtedness created by that portion of the enlarged district which formerly constituted within itself a school district. We understand the holding to be that they may do so without thereby violating the constitutional provision invoked in that and the present case. The substance of the holding in that case contained in the concluding paragraph of the opinion is:

“That where an independent school district votes a special tax pursuant to the authority conferred by ⅜ ⅜ * the Constitution and aft-erwards extends the boundaries of such district, the existing special tax so authorized cannot be levied and collected against the property in such extension until such assessment is authorized by a vote of the qualified taxpaying voters of the district as extended.”

It is thus made dear that taxpayers may be taxed in such cases for the purpose of paying an indebtedness with the creation of which they had nothing to do if a 'majority of the voters in the enlarged district vote to do so. In cases of enlarged or consolidated districts the new district as a body corporate succeeds to the property as well as any money available for school purposes, and it is at least just and reasonable that they may by vote assume the debts of the district whose property has thus been vested in the new district. By reference to the act of the Legislature creating Rockwall independent school district cited herein, it will be seen that the Legislature vested in the Rockwall independent school district the title of the school property of common school district No. 2, including $6,139.97 in money, and directed all school funds apportioned to the territory included in the new district to be paid its trustees.

Then the question now arises, which we did not consider in our original opinion: Did the taxpaying voters of the enlarged district at the August election vote to assume the debt existing in common school district No. 2? We now conclude they did not. The question submitted to the voters of the enlarged district by the school trustees was whether they would vote a tax of 50 cents “for the support and' maintenance of public free schools” in the enlarged district? The language used is not, in our opinion, sufficiently comprehensive to warrant the conclusion that the voters intended thereby to assume the debt of common school district No. 2 and a consequent levy of a portion of the tax so authorized to the payment of said debt. The rule requiring such question to be submitted to the taxpaying voters, as we have'shown, grows out of the construction of the Constitution (article 7, § 3), and there is¡ no statutory or other method prescribed for submitting the question in any particular language. We have found in our reports no opinion construing the term "support and maintenance of the public free schools” as used at the election. “Maintain” and “support” are synonymous, and in a general sense mean “to hold in an existing state or condition.” Century Dictionary. In our statutes relating to school taxes “maintain” is used in contradistinction to debts. Article 2857, Vernon’s Say les’ Civ. Stats. There it is said that the county school trustees may submit to the voters two questions, one being whether they shall levy and collect a special tax for the “maintenance of schools,” and another being whether they shall levy and collect a special tax for the purchase of sites * * * and the construction, etc., of public free school buildings. In other jurisdictions it has been ruled that “support,” used in reference to common schools, means continuing regular expenditures for the maintenance of said schools, so that a fund for the support of such schools cannot be used for purchasing a school site or constructing a building thereon. Sheldon v. Purdy, 17 Wash. 135, 49 Pac. 228; Roach v. Gooding, 11 Idaho, 244, 81 Pac. 642. If then a fund voted for the support of the common schools may not be used to purchase a site and build a schoolhouse, neither may such a fund be used for the purpose of paying the debt owing therefor as in the case at bar. Such conclusion, we believe, to be sound in principle and reason.'

As a consequence the court should have restrained the appellees from collecting any part of the fund voted and levied for the support and maintenance of the schools in the enlarged district for the purpose of paying the interest on and creating a sinking fund, with which to pay the principal of the debt created by common school district No. 2.

It is also urged that in the event the appropriation of 15 cents of the tax voted to maintain the common schools in the enlarged district for payment of the debt of common school district No. 2 is void that then the trial court erred in refusing appellant a mandatory injunction requiring appellees to levy a tax of 25 cents on the $100 of valuation against all taxable property in common school district No. 2, for the purpose of paying the annual interest and principal on the bonds issued by it for the year 1916. In connection with the issue so presented it is, of course, the duty of school trustees to levy and collect, when authorized by the taxpaying voters, such tax as will be sufficient to pay the annual interest and that portion of the principal annually maturing of the district’s outstanding debt. Article 2841, Vernon’s Sayles’ Civ. Stats. It appears from the facts in the record that a tax of 25 cents was required. If that much is not required, it will so appear upon another trial.

It is also urged that the trial court should have restrained appellees, the school trustees, from levying and collecting 35 cents .as maintenance tax on the ground that it will require 25 cents on the $100 of valuation to pay the interest and maturing principal of the bonded indebtedness of common school district No. 2, which amount, added to the 35 cents levied for maintenance of the schools, will exceed the constitutional limit of 50 cents. By article 7, § 3, of the Constitution and by article 2841, Vernon's Sayles’ Civ. Stats., the tax necessary to meet the bonded indebtedness, principal and interest, and the expense of maintaining the public schools, shall never exceed 50 cents on the $100 of valuation. Accordingly, if upon another hearing it appears that the tax necessary to meet the bonded indebtedness, interest and principal, levied against the taxpayers in common school district alone, added to the 35 cents levied to maintain the schools in the enlarged district exceeds 50 cents on the $100 valuation, as to the taxpayers in common school district No. 2 alone, then the maintenance tax should be lowered so as to bring the combined sums within the constitutional maximum.

It is urged by counsel for appellees with much force that fairness, right, and justice dictates that the taxpayers of the enlarged district, having succeeded to the property, money, and school fund of common school district No. 2, should in like manner assume its debts. The contention certainly has right and justice for its basis, and we doubt not will appeal to the taxpayers when that issue is presented to them at an election.

For the reasons stated the judgment of the court below is reversed, and the cause remanded for another trial not inconsistent with the views herein expressed.

Reversed and remanded.
      @=Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J.

text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. ANDERSON.
    (No. 8522.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    March 3, 1917.)
    1. Limitation of Actions <§=555(7) — Continuing Injury — Statute Applicable.
    Where a railroad so constructed an embankment as to cause surface waters to overflow plaintiff’s land, the two-year statute of limitations was not a complete bar to recovery for injuries accruing during the two years prior to the action, though the original building of the embankment was done more than two years before the suit was brought.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 305.]
    2. Limitation of Actions <§=555(7) — Permanent Nuisance — Railway Embankment-Evidence.
    Evidence held insufficient to show that the nuisance by backing surface water on plaintiff’s land, caused by the construction of the railway embankment, was of permanent character.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 305.]
    3. Limitation of Actions <§==55(7) — Railway Embankment — Permanent Nuisance —What Constitutes.
    In an owner’s action for damages from the diversion of a natural stream or flow of water by an obstruction constructed by a railroad, the injury is to be regarded as permanent, where the cost of remedying it would be so great as to justify the railroad in condemning the property and taking it under the power of eminent domain, but if the injury can be remedied at a reasonable expense, it may be regarded as temporary, and the question whether the injury is permanent or temporary may be for the jury.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 305.]
    4. Appeal and Error <§=5934(2) — Scope of Review — Presumptions.
    If any finding should be imputed to the court in the absence of requested charges submitting the issues, the finding should be in support of the judgment.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3777.]
    5. Waters and Water Courses <§=5178(2) — Flowage of Surface Waters — Obstruction-Damages.
    The landowner whose property was damaged by overflow of water, caused by construction of railroad embankment, could recover the difference in the market value immediately before the overflow and immediately thereafter, or could recover for rentals lost 'by reason of the condition, but could not recover both items.
    [Ed. Note. — For other eases, see Waters and Water Courses, Cent. Dig. § 255; Damages, Cent. Dig. § 276½.]
    6. Waters and Water Courses <§=3179(4) — Flowage of Surface Waters — Obstruction-Damages.
    In property owner’s action for damages to land by overflow, an award for depreciation of property could not be sustained in the absence of evidence of its value immediately before and immediately after the alleged overflow.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 250, 263.]
    7. Waters and Water Courses <§=5178(1) — Flowage of Surface Waters — Obstruction-Damages.
    A railroad which constructed an embankment and backed water upon plaintiff’s land from one direction could not be held liable for any damages caused by reason of the fact that the land on the other sides of plaintiff’s land was higher than his.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 251-254; Damages, Cent. Dig. § 276½.]
    Appeal from District Court, Tarrant County ; J. W. Swayne, Judge.
    Action by Forrest M. Anderson against the Missouri, Kansas <& Texas Railway Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    C. C. Huff, of Dallas, A. C. Wood, of Houston, and Thompson & Barwise, of Ft. Worth, for appellant. Baskin, Dodge, Baskin & Eas-tus, of Ft. Worth, for appellee.
   BUCK, J.

In 1905 appellee bought the property for the injury to which he sued in this case. It is located at the northeast corner of the intersection of Rosedale street, running east and west, and Arizona avenue, running north and south, in the city of Ft Worth, being 100x100 feet in size. The right of way of appellant parallels Arizona avenue in the vicinity where this property is situated, with only Arizona avenue between it and the property in controversy. The right of way is 100 feet in width, and the tracks at this point are laid on an embankment 15 to 20 feet high. The only opening through the embankment on which the tracks of appellant are laid is that through which Rosedale street passes under the tracks. The land to the west, southwest, and north of this property is higher than the land at that point. At the time of the purchase of the property there were two houses on it, and soon thereafter appellee built three others. All were small, and were rented to ne-groes. Prior to 1910 appellant had only one track on its right of way, and on this embankment near appellee’s property, and the tracks across Rosedale street were supported by pilings. At that time the water from the rainfall on the west side of the track, after flowing under the bridge or trestle on pilings, was conveyed, by means of a ditch adjacent to the embankment, north 150 feet, and then across Arizona avenue, and flowed in a general easterly direction towards a large lake in the eastern part of the city. Thus ap-pellee’s property was in a measure protected from overflows from the west, though there is some evidence to show that after very heavy rains some of the water was carried directly across Arizona avenue onto and across the property owned by appellee.

About 1910, in order to lay an additional track, the appellant widened the embankment, and thereby filled up the ditch, which had theretofore, largely at least, diverted the water from appellee’s property, and, in addition, consti’ucted concrete abutments at Rose-dale street, to take the place of the piling, and said abutments, that is, on the north side of Rosedale street, extended somewhat south of the embankment as it had theretofore existed. Thereby the water which had theretofore in the main been carried northward by means of this ditch was caused to flow over appellee’s property, and injure it .as will Ibe hereinafter shown. There was placed, apparently by appellant, on the north side of Rosedale street and near appellant’s embankment, a comparatively 'small tiling or storm sewer running in a northeasterly direction across Arizona avenue, but said tiling proved insufficient to collect and carry off the water which came under the .appellant’s bridge or trestle along Rosedale street, and in case of heavy rains the water flowed past the mouth of this sewer across Arizona avenue and onto appellee’s property.

On September 23, 1914, appellee filed suit against appellant, in which he alleged injury to his property by means of the construction of the enlarged embankment and the abutments aforementioned, and the filling up of the said ditch, and alleged that appellant was negligent in said respects, and had. caused the water theretofore flowing under appellant’s tracks at this point to be deviated and obstructed, and that by said acts the natural flow and drainage at this point was changed. He further alleged that the natural flow of the water at this point was in an easterly direction under the tracks of appellant, thence along this ditch some 200 feet, and that such natural flow did not inundate or injure his property. He alleged injury in that his houses had been washed off their underpinnings, their porches were wrecked, etc., and that they had become untenantable and uninhabitable, and for which he asked damages in the sum of $1,000. He further alleged the rental value of said houses during the period covered by his claim, to wit, from the-day of September, 1912, to be $35 per month, and he asked a recovery in the sum of $1,500 for. rents and profits, and damages in the sum of $41 for the loss of dirt and timbers.

Appellant answered by general demurrer and general denial, by various special exceptions, by a plea of the two-year statute of limitation, and by a plea of contributory negligence.

The cause was submitted to a jury under a general charge, wherein the jury were instructed that in no event could they award appellee damages for any injury that might have been sustained to said land and improvements on account of such diversion of the natural flow of the water as might have occurred two years prior to the filing of the suit. Upon a verdict awarding plaintiff damages for injury to his property in the sum of $1,000, and for loss of rentals in the sum of $500, judgment was entered in the sum of $1,500, from which defendant appeals.

By a number of appropriate assignments appellant urges error in .the trial court in submitting to the jury any instructions except a peremptory charge in favor of the defendant, on the ground that any right of recovery had by appellee for the alleged injury to his property was barred by the two-year statute of limitation. It is urged that the construction of the additional track and consequent enlargement of the embankment and the construction of the abutments supporting appellant’s track across Rosedale street created a nuisance, if one at all, ’permanent in its character, so that with respect to the rights of the appellant it could not be abated, and that, inasmuch as the evidence shows that appellee’s property was overflowed on the occasion of each successive rain thereafter, the statute began to run upon the construction of such additional improvements, including the filling up of the ditch, and, since no suit was filed within two years thereafter, appellee’s right of action is barred.

Appellee’s answer to the assignments presenting this question is that the railway company, in the exercise of its legal right, con-strueted the abutments and embankments on its right of way, that thereby a cause of action did not immediately arise, and that the statute of limitation did not begin to run at the time of such construction, but would only begin to run as to each overflow and the consequent injury when said overflow occurred, and then the limitation would only apply, and would be restricted, to the right of action by reason of each separate overflow and injury; . that the evidence shows, from the testimony of appellee’s mother, Mrs. B. E. Anderson, that during the year 1912 the property ceased' to be tenantable and ceased to be rented, and after having been so notified by the rental agents and that the tenants had moved out on account of water, she had the houses cleaned of mud and repaired and placed them in as good condition as they were before the overflow ; that prior to April, 1912, she and her son, the latter being off at school during a part of the time,' had very little trouble in keeping the houses rented; that at first they got $42 per month rental, but later from $35 to $38 monthly; that the date of the repairs mentioned “was about the last of 1912, along in the fall of the year”; that from the time they first bought the property until 1912 it had never overflowed; and that since the fall of that year she had not been able to rent it.

The question here presented is not without extreme difficulty. It is one that has been passed upon by the courts of doubtless every state in the Union, and has been the subject of much discussion by text-writers, and yet there seems to be much confusion among the authorities as to when the statute begins to run in a case of this kind. An earnest effort on our part to reach a conclusion with which the utterances of the leading text-writers and the decisions of the courts of last resort in the states in which this question has most frequently arisen could be reconciled has proven in vain, and the result of our investigation is far from satisfactory. However, the majority of us, at least, have concluded that in the instant cáse the statute of limitation would not be a complete bar to a recovery of damages for loss sustained by appellee subsequent to two years prior to the filing of the suit.

In the well-known case of Houston Waterworks v. Kennedy, 70 Tex. 233, 8 S. W. 36, our Supreme Court, speaking through Chief Justice Stayton, lays down two rules, amply sustained by authority, which should be kept in mind in the determination of a question like the one involved here. These are, quoting from the syllabus:

(1) “When an act is in itself lawful as to the person who bases thereon an action for injuries subsequently accruing from and consequent upon the act, the cause of action does not accrue until the injury is sustained.”
(2) “If an act is done which in itself is an invasion of the right of another, which being done, injury is the natural sequence, then limitation will run against the right to recover' damages from the time the unlawful act was committed, though the injury may not have been discovered until within a period before suit less-than would be sufficient to complete the bar of the statute.”

In the cited case the statute was determined to be a bar to recovery, inasmuch as the-court held that the act done, which was the original cause of the injury, was in itself an invasion of the right of plaintiff, and that he had at that time a right of action. There the defendant was alleged to have—

“cut away a portion of the arch aforesaid to-make way through the same for defendant’s water pipe, and in so doing removed the support theretofore afforded to said east corner of said building, caused thereby said building to settle-in the ground away from the other portions of said building, and the walls of said building to-crack and burst open in several different places, thu* occasioning to plaintiff’s property serious, injury and dám-age.”

This was held to be an act wrongful towards the owner of the property at the time-it was committed and for which an action might have been immediately maintained. But the principles enunciated in the cited case have been relied on in other cases where it did not appear that the act of the defendant which evidently caused the damage to-plaintiff was a direct invasion of the latter’s right.

In Austin & N. W. Ry. Co. v. Anderson, 79' Tex. 427, 15 S.. W. 484, 23 Am. St. Rep. 350, our Supreme Court, in sustaining a recovery for injury to crops growing on plaintiff’s land, such injury and damage having resulted from the manner of construction of the railway company’s roadbed and culverts made more than tsvo years prior to the suit, held that where a nuisance is permanent and continuing, the damages resulting from it should a'll he litigated in one suit, but when it is not permanent, but depends upon accidents and contingencies so that it is of a transient character, successive actions may be brought for-each injury as it occurs, and that an action for such injury would not he barred by the-statute of limitations, unless the full period, of the Statute had run against the special injury before suit. It also held that an embankment and culvert upon the right of way, although defectively built, do not constitute-a nuisance, but they may become a nuisance-when they divert water from rainfall from its-usual flow.

In the case of G., O. & S. F. Ry. Oo. v.. Helsley, 62 Tex. 593, the Supreme Court held, that the plaintiff was entitled to recover both for injury to the realty itself and for loss-of crops destroyed or damaged, and adopted the rule laid down in Van Pelt v. City of' Davenport, 42 Iowa, 314, 20 Am. Rep. 622;

“The true measure of damage is the injury which the land and other property of the plaintiff sustains from the successive overflows when they occur”

—and reversed the trial court because it had' charged that the measure of.damages would be the difference between the market value' of the land, at and just before the building: ■of the railroad and the market value of the same after the injury was done. It was further held that, where no part of the realty was taken or injured, nor any charge wrought upon it, plaintiff could recover only for the ■destruction of the crops growing thereon.

In Clark v. Dyer, 81 Tex. 839, 16 S. W. 1061, the court, in referring to article 4171 of the Revised Statutes, now article 6495, Vernon’s Sayles’ Texas, Civil Statutes, which reads:

“In no case shall any railroad company construct a roadbed without first constructing the necessary culverts or sluices, as the'natural lay of the land requires, for the necessary drainage thereof” ⅜

—said:

“A necessary implication arising from this statute is that the duty is not only to construct, but to maintain, the culverts in proper condition, so that they would accomplish the purposes for which they were constructed.”

This case further holds that in the case of the construction of an embankment provided with insufficient sluices and culverts the railway company is liable for each successive overflow caused thereby, and that limitation against such damages runs from the date of each overflow caused by such failure, distinguishing the cases of Waterworks v. Kennedy and Railway Oo. v. Helsley, supra.

In the case of Houston v. Parr, 47 S. W. 893 (writ denied), the court says:

“Counsel for appellant contends that plaintiff’s cause of action is barred because the statute of limitations .was put in operation at the date of the construction of the ditch. This would be the case where the owner’s property is directly invaded. * * * But * * * the ditch was constructed where the party constructing it had the right to construct it. Damages could have been recovered at the time of its construction for such depreciation to the value of the property as it then caused, and, if suit had been brought then, any subsequent recovery would have been barred as by a former adjudication. But, no suit having been brought, the plaintiff still had the right to sue for and recover all such damages as may have been caused within two years prior to the time of the institution of his suit.”

In Railway Co. v. Goldman, 8 Tex. Civ. App. 257, 28 S. W. 267, writ denied, 87 Tex. 567, 29 S. W. 1062, it was held that limitation commenced to run when the deterioration in value of the farm began, citing Wood on Nuisances, 996; Angelí on Dimita'tions, § 300. The rule laid down by Wood is given, to wit:

“When the original nuisance is of a permanent character, so that the damage inflicted thereby is of a permanent character, and goes to the entire destruction of the estate affected thereby, a recovery not only may, but must, be had for the entire damage in one action, as the damage is deemed to be original; and as the entire damage accrues from the time the nuisance is created, and only one recovery can be had, the statute of limitation begins to run from the time of its erection against the owner of the estate or estates affected thereby.”

In City of Houston v. Railway Co., 26 Tex. Civ. App. 228, 63 S. W. 1056, 1057, Justice Gill of the Court of Appeals for the First District, in the discussion of the Goldman Case, supra, says:

“Justice Williams makes the distinction and announces the rule that, when 'a wrongful act amounting to a nuisance of itself creates a complete and permanent injury, the statute would run from the completion of the thing creating the nuisance, but that, where the nuisance is permanent, but the injury arising therefrom is not only continuous, but constantly increasing, successive actions will lie until the nuisance is abated.”

See Grossman v. Railway Co., 99 Tex. 641, 92 S. W. 836; Railway Co. v. Ashe, 158 S. W. 205; Cement Oo. v. Rezer, 174 S. W. 661, writ denied in 183 S. W. xvi.

From the cases cited and many others which might be cited from the courts of this and other states, we have reached the conclusion that those assignments directed to the refusal of the court to give a peremptory instruction in behalf of defendant must be overruled. It is true that in perhaps two of the cases cited the cause of the obstruction to the natural flow of rainfall might reasonably be said not to be of so permanent a character as that here shown, and appellant urges that these cases are therefore not applicable. But in most of the cases cited the obstruction was caused by embankments, dams, etc., structures of a permanent character, and, moreover, we understand the rule to be, as stated above, that the test is not whether the obstruction was of a permanent character, but whether the injury or damage inflicted was of a permanent character, in order that the statute of limitation might be successfully pleaded in bar. In this case it would appear that the appellant had a right to construct the embankment and the abutments complained of, so long as such construction and the maintenance thereof did not cause damage to others. The injury to appellee’s property did not begin until an overflow occurred from a subsequent rainfall. The evidence was that the years of 1910 and 1911 were considered drouthy years, with a subnormal rainfall; that during the four succeeding years the rainfall was as follows: 1912, 26.35 inches; 1913. 37.70; 1914, 46.64; and that during August alone of 1915 there was a rainfall of 10.33 inches, nearly 7 inches falling within two days. If plaintiff had brought his suit at the time of the construction of the embankment and abutments, it would have been practically a matter of speculation, in which no jury or court should be called on to indulge, to determine the extent of damage which would result to plaintiff by reason of the obstruction of the natural flow of the rainfall under the trestle and through the ditch, as before Constructed.

Moreover, from the evidence adduced we are not prepared to hold that the results from the construction of the enlarged embankment and the abutments constituted a nuisance permanent in its nature, and which could not be abated with due respect to the rights of the railway company. While it is true that the extension southward of the obstruction caused by the construction of the abutments and the widening of the embankment and eonfeequent filling up of the ditch which had previously been made by the railway company for the purpose of 'diverting the water due to rainfall off the plaintiff’s property were alleged by plaintiff as the cause of the injury to his property, in connection with the placing of an insufficient storm sewer or drain, yet it does not appear that the alleged damage to plaintiff’s property, and the cause or causes from which such damage resulted, could not have been abated, either by the construction of a ditch running northward and parallel with and on the east side of appellant’s right of way, similar to the one theretofore existing, or by replacing the present storm sewer or drain with one large enough to carry off the natural overflow, or by both such provisions. While the improvements or construction made by appellant in the way of abutments and enlarged embankment were permanent in their nature, yet there seems to be no good reason why the nuisance or injurious effects resulting therefrom could not have been abated.

In an owner’s action for damages from the diversion of a natural stream or flow of water by an obstruction constructed by a railroad, the injury is to be regarded as permanent,'where the cost of remedying it'would be so great as to justify the railroad in condemning the property and taking it under the power of eminent domain. But if the injury can be remedied at a reasonable expense, it may be regarded as temporary, and the question whether the injury is permanent or temporary may be for the jury. M., H. & E. Railway Co. v. Graham, 147 Ky. 604, 144 S. W. 737. There are some authorities holding that the term “permanent injury,” as applied to a nuisance, means that the injury will continue without change from any cause except human labor (see Harvey v. Mason City & Ft. Dodge R. Co., 129 Iowa, 465, 105 N. W. 958, 961, 3 L. R. A. [N. S.] 973, 113 Am. St. Rep. 483), but we believe the rule enunciated by the Kentucky court supra is sound in law and principle. If this be a conclusion justified by the evidence, as we think it is, much of the difficulty arising from the conflict of authorities aforementioned is removed; for even appellant admits, in effect, that if the nuisance created by the construction aforesaid was not permanent in its nature, and was subject to abatement with respect to the rights of appellant, limitation would not begin at the time of the construction of these improvements which worked as an obstruction to the natural flow of the water.

This phase of the case was not presented to the jury for a finding, nor was an instruction given with reference thereto. The charge with reference to the elements of negligence alleged by plaintiff was as follows:

“Bearing in mind the foregoing definitions, if you find and believe from the evidence that the defendant railway company, in the construction of additional tracks and abutments near the plaintiff’s property or as a result of such construction, filled or obstructed or caused to pe filled or obstructed a drainway extending north from Rosedale street, along its right of way, which was then and for years prior thereto a water course carrying the natural drainage of surface waters, and thereby diverted the flow of said waters to, upon, and across plaintiff’s property, * * * and that such diversion injured the plaintiff’s said property and improvements thereon, and you further believe that such diversion, if any, was negligence, and that such negligence was the proximate cause of such injuries, if any, then you will find for the plaintiff such damages as he may have sustained,” etc.

If any finding upon this phase of the ease, i. e., as to the permanency or not of the conditions created by the obstruction, should be imputed to the court, in the absence of requested charges submitting the issue, then such finding, being in support of the judgment, should be held to be against the permanency of such condition, or, at least of the injury.

The twenty-sixth assignment urges the excessiveness of the verdict and judgment, in that recovery was had in the sum of $1,000 for the depreciation in the value of plaintiff’s property, and, in addition thereto, $500 for loss of rents. We think this assignment should be sustained. If plaintiff’s cause of action was not barred for the reason heretofore given, then his right of action was as to each successive overflow causing damage occurring within two years prior to the suit. In such an action he could recover for the depreciation in the market value of his property caused by the overflow, and the true measure of damages would be the difference in the market value immediately before such overflow and immediately thereafter, or he could recover for rentals lost by reason of the overflowed condition, but he could not recover as to both such items. T. & P. Ry. Co. v. Ford, 54 Tex. Civ. App. 312, 117 S. W. 201; G., H. & S. A. Ry. Co. v. Becht, 21 S. W. 971; 40 Cyc. p. 589 (VII). For this error the judgment must be reversed.

Appellee contends that, even though the judgment be excessive as to the $500 recovered for loss of rents, any error may be cured by a remittitur. But the difficulty is, as presented by the twenty-fifth assignment, that the court instructed the jury that in estimating plaintiff’s damages they would be govierned by the difference, if any, in the reasonable market value of the land and improvements immediately preceding the injuries complained of and their market value immediately after such injuries; that is, the market value immediately before the first injury subsequent to September 23, 1912, and the market value of the land and improvements immediately following the last injury. There was no evidence as to the market value of the premises immediately before and immediately after any alleged overflow. Therefore there was no evidence to sustain the recovery of the $1,000; and, even though it might be said that it was the duty of appellant to submit a charge giving the true measure of damages, and that upon its failure so to do it should be held to have waived any error in the submission of this issue, yet, in the absence of any proof as to what was the difference between the value of the property immediately before and immediately after the successive alleged overflows, the recovery will fail for want of proof. At least this'court would have to require a remittitur as to the $1,000.

But we are not permitted to make such a disposition of the case, because in our opinion other errors ' are presented in the record requiring a reversal. For instance, in the sixteenth specification of error it is urged that the court erred in refusing to give appellant’s special charge No. 27, as follows:

“You are instructed that, should you find a verdict in favor of the plaintiff and assess him damages, you cannot allow him damages, if any, to his property that may have been caused, if any, by water, if any, flowing thereover by reason of the land to the north, south, and east of his said property being higher than his said property, if it is higher.”

Without attempting to quote testimony making this charge proper, it is sufficient to say that several witnesses testified that the lands lying east, north, and south were higher than plaintiff’s property, and it was only as to the rainfall flowing off that territory lying west which was drained by the water course entering under the bridge or trestle that appellant could, in any event, be charged with damages. For any paid; of the injury occurring by reason of the overflow occasioned by the water from any other direction than the west, appellant should not be charged with the damage resulting therefrom.

Many other questions are raised in appellant’s brief, consisting of some 175 pages, but we think we have sufficiently disposed of the case in what we have said.

Judgment reversed, and cause remanded.
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