author: MOURSUND, J.

text:
    HAMBLETON v. DIGNOWITY et al.
    (No. 5780.)
    (Court of Civil Appeals of Texas. San Antonio.
    April 25, 1917.
    On Motion for Rehearing, June 30, 1917.)
    1. Venue <@=>32(2)—Privilege oe Defendant —'Waiver.
    Where appellant prior to her renewed pics of. privilege to be sued in the county of her residence filed an application for a continuance, which was passed on at the same term, she waived the right to urge the privilege.
    [Ed. Note.—Eor other cases, see Venue, Cent. Dig. § 49.]
    2. Trusts <@=>42—Parol Trusts—Evidence.
    In a suit by plaintiffs, grantor’s grandchildren, to establish a parol trust upon land apparently conveyed absolutely to defendant, grantor’s daughter, where defendant had introduced evidence to the effect that grantor had stated that she had given plaintiffs’ fathers all that was coming to them, it was proper to permit plaintiffs to introduce a deed of gift from grantor to defendant executed 20 years before the intended trust deed to show that grantor had also helped defendant by giving her many lots.
    [Ed. Note.—For other cases, see Trusts, Cent. Dig. § 61.]
    3. Evidence <@=>273(1)—Pabol Trusi^-Dec-labations—Admissibility.
    In a suit by plaintiffs, grantor’s grandchildren, to establish a parol trust upon land conveyed to defendant, grantor’s daughter, that grantor retained possession and absolute control of the premises did not make her declarations after the conveyance in disparagement of grantor’s title admissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1108-1110.]
    4. Trusts @=342 — Parol Trust — Declarations — Admissibility.
    Nor was testimony in regard to the acts relied upon to show exercise or control of premises by grantor admissible.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 61.]
    5. Trusts @=342 — Parol Trust — Declarations — Admissibility.
    The testimony tending to show that the defendant had knowledge of the provisions of grantor’s will executed four years before the deeds was inadmissible to prove the, existence of a trust under the deeds or for the purpose of impeaching defendant’s statement that she had never heard of plaintiff’s claim until six years after the deeds were executed.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 61.]
    6. Trusts <©=342 — Parol Trust — Declarations — Admissibility.
    Plats and deeds, as well as statements of grantor, made prior to her will executed four years before the deeds conveying the land, were admissible.
    [Ed. Note. — For other eases, see Trusts, Cent. Dig. § 61.]
    On Motion for Rehearing.
    7. Trusts @=42 — Parol Trust — Declarations — Admissibility.
    No trust can be created by the declarations of the grantor made after delivery of the deed of trust.
    [Ed. Note. — For other cases, see Trusts, Cent. Dig. § 61.]
    Appeal from District Court, Bexar County; R. B. Minor, Judge.
    Suit by the Southwest Baptist Hospital against Hallie B. Dignowity and another in which defendants filed a cross-bill impleading Imogene T. Hambleton. From a judgment for defendants on the cross-bill, Hambleton appeals.
    Reversed and remanded.
    Moody & Boyles, of Houston, for appellant. W. W. King and J. D. Guinn, both of San Antonio, for appellees.
   MOURSUND, J.

This is an appeal from a judgment rendered upon a cross-bill filed by Dorothea Dignowity (now Dorothea Currier) and Hallie B. Dignowity in a suit which was instituted against them by Southwest Baptist Hospital to remove cloud from the title to a block of land in the city of San Antonio, which the hospital had purchased from Imogene T. Hambleton, appellant herein, paying part cash and giving vendor’s lien notes for the balance. Appellees filed this cross-bill impleading appellant. Upon a former trial judgment was rendered for the hospital removing the cloud from its title, which judgment was affirmed upon the former appeal of this case, reported in 172 S. W. 574, but the judgment which had been rendered upon the cross-bill was reversed and the cause, as to said cross-bill, remanded. The mandate was filed in the trial court on November 1, 1915. On December 10, 1915, appellant filed an amended answer. On February 16, 1916, appellant renewed and re-urged her plea of privilege, and the same was overruled. A trial was had before a jury, and upon the answer of the jury to a special issue, judgment was rendered that appellees are entitled to a part of the purchase money of said property, and that each recover of and from appellant and the hospital the sum of $5,715, and foreclosing a vendor’s lien for the payment of such amounts.

There is no controversy concerning the pleadings, so it will suffice to say that the issue made thereby is well stated in the special issue submitted to the jury, viz:

“At the time the two deeds of January 16,' 1907, were signed, acknowledged, and delivered by Amanda J. Dignowity to Imog'ene T. Ham-bleton, was it, or not, agreed and understood between them that the said Imogene T. Hamble-ton should hold three corner lots out of block 10 in trust for each of said Amanda J. Digno-wity’s granddaughters. Dorothea Dignowity, Hallie B. Dignowity, and Helen Hambleton, each to have a corner lot as described in the answer of Dorothea and Hallie B. Dignowity, so that she (the said Imogene T. Hambleton) would have power to sell said lots, and pay over the proceeds to said grandchildren?”

The first assignment of error reads as follows:

“The court erred to the prejudice of this defendant in overruling and denying the plea of privilege of this defendant to be sued only in Harris county, Tex.”

Appellant filed a plea of privilege, which was overruled on November 10, 1913, and upon the former appeal an assignment complaining of such ruling was overruled. After the mandate was issued, appellant, on February 16, 1916, amended and again pleaded her privilege to be sued in the county of her residence, which plea was also overruled. The ruling upon the renewed plea cannot be complained of because the cause was continued generally at the December term, and an application for a continuance was filed by appellant during, and passed upon at, the February term prior to filing said plea of privilege. By these acts the right to thereafter file and urge a plea of privilege was waived. It may well be doubted whether appellant was entitled to again raise the question of her privilege to be sued in the county of her residence, but if she was, her plea could not have any better standing than if the cause had been instituted at the time the mandate .reached the district court, and by the acts above mentioned, which occurred after the cause was again pending in the trial court, she waived such plea. The assignment is overruled.

The court did not err in admitting in evidence a deed of gift from Mrs. Amanda J. Dignowity to appellant, dated November 17, 1879, conveying a large number of lots. The objection was that this deed did not tend to show that deeds executed 20 years later were intended in part as a trust. In view of the fact that appellant introduced testimony to the effect that her mother had stated that she had helped her sons, the fathers of appellees, along in their business ventures, and that she considered she had given them all that was coming to them out of her estate, it appears to us that it was proper to permit ap-pellees to show that their grandmother had also helped appellant by giving her many lots.

Appellant complains of the admission of the testimony of H. L. Dignowity to the effect that Amanda J. Dignowity made a statement to him after the execution and delivery by her of the deeds to'appellant, to the effect that she wanted appellees to have “what she had given them prior” and had made the deeds to appellant with the understanding that) by handling it all in her name perhaps she would be able to borrow money or settle up better. This testimony was objected to on the ground that the declarations of the grantor, made after the execution of the deeds, and not in the presence of the grantee, are inadmissible for the purpose of-ingrafting a parol trust upon said deeds1. This objection was overruled, as is apparent from the qualification to the bill of exceptions, on the ground that testimony had been introduced to the effect that said grantor was in actual control and possession of the premises at the time such declarations were made. Upon the former appeal this testimony was1 held inadmissible, and also the testimony of H. L. Dignowity to the effect that his mother had control of the property up to the time of her death, which was objected to solely on the ground that it was the conclusion of the witness. It is apparent from the opinion that this court held that the continuation by Mrs. Dignowity of her residence upon the premises did not make the testimony admissible, but as the character of the possession was stated, and the objection to the testimony of I-I. D. Dignowity to the effect that his mother had control of the property up to the time of her death was sustained on the only ground urged, and therefore no other was discussed, the trial court evidently understood that there might be such character of possession retained by a grantor as would make declarations admissible, though made after execution and delivery of deeds. We did not so hold, but if there could be such possession, we conclude it is not shown by the facts of this case. The deeds were delivered on January 16, 1907. Mrs. Dignowity was 87 years of age, and, according to I-I. D. Dignowity’s testimony, in a dying condition from that date to January 27,1907, the date of her death. Such witness when interrogated in regard to her activities evaded questions, and the substance of his testimony was that she once told him to see if one of the servants did his work, and he thought his mother had asked him upon one occasion to get some meat. Mrs. Dignowity elected to stay with her daughter during the few days remaining to her, and the trivial matters testified about did not tend to show that she still considered herself the owner of the premises. W!e do not believe that possession and absolute control of premises by the grantor would in a case like this justify the admission of declarations in disparagement of the grantee’s title. It is true that in fraud eases it is held that possession will have that effect, but possession by the grant- or is an indication that title has not passed from him, and when his creditors attack his conveyance for fraud, they can introduce his declarations which also tend to show that he is merely concealing his property. Mrs. Dig-nowity’s retention of possession could not tend in the slightest degree to show any title or right in her granddaughters, and no reason can be urged why her declarations in disparagement of her grantee’s title should be admitted.

In view of this conclusion, we hold that H. D. Dignowity’s testimony in regard to the acts relied upon to show exercise of control over the place by her was not admissible, and sustain the third and fifth assignments. Said last-mentioned testimony is objected to upon this appeal, not only on the theory that it consisted of conclusions, but upon the ground that it was irrelevant and immaterial in that it did not tend to prove the existence of a trust.

The testimony of H. L. Dignowity cannot be held harmless on the ground that similar testimony was admitted without objection, for it is not clear that Mrs. Purkiss intended to say that any statement was made to her after the deed was executed. In fact, her testimony was construed by us on the former appeal to relate solely to declarations made prior to the execution of the deed. The fourth and fourteenth assignments are overruled.

The sixth assignment is sustained. Appellant’s knowledge of the provisions in the will of her mother, • executed in 1903, concerning the payment of $1,000 to each granddaughter, did not tend to prove the existence of a trust under deeds made in 1907. Appel-lees contend this was admissible in impeachment of appellant’s statement that she had never heard of appellees’ claim until 1913. They lose sight of the fact that appellant’s knowledge of the provisions in the will could not possibly apprise her of the fact that the granddaughters claimed that appellant under deeds made in 1907 held certain lots in trust for appellees.

The seventh assignment is also sustained.

The eighth assignment is overruled. The plat and deeds, as well as the statements made by Mrs. Dignowity prior to 1903, were all admissible, for they showed that at one time Mrs. Dignowity intended for the appel-lees to have the lots which they claim are held in trust for them. In view of the will of 1903, such evidence was of only slight probative value, yet the very fact that such an intention existed at one time is a circumstance which shows probability that she might again adopt such intention and therefore admissible.

By the thirteenth assignment complaint is made of the judgment in so far as it was rendered against the hospital for the sums awarded appellees, and for foreclosure of the vendor’s lien against the block of land. We believe the complaint is well founded in so far as the'judgment awards appellees a foreclosure of lien. The hospital has not complained of .the judgment.

By various appropriate assignments appellants raise the issue as to the sufficiency of the evidence to establish the trust pleaded. The evidence is not exactly the same as upon the former appeal, but the really important features are the same, and the views expressed at that time with reference thereto are still held by us.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

Appellees contend, in effect, that in holding the declarations of Mrs. Dignowity to Henry Dignowity, made after the delivery of the deed, to be inadmissible, we announced a rule at variance with all the authorities. We have given careful consideration to the authorities relied upon, and are of the opinion that most, of them have no application to the question presented. See 109, vol. 1, Greenleaf on Evidence, Smalley v. Paine, 62 Tex. Civ. App. 52, 130 S. W. 742, and Lord v. Insurance Co., 27 Tex. Civ. App. 139, 65 S. W. 699, citations greatly relied upon, relate to declarations made by a grantor in disparagement of his title or explanatory of or qualifying his possession, and have no bearing on ■ the question whether declarations of the grantor are admissible, made after the delivery of the deed, in disparagement of, limiting or destroying in part, the title of the grantee, who is also in possession of the premises. The case of Carleton v. Baldwin, 27 Tex. 573 is also cited, but that was a case in which the deed was attacked as fraudulent, and the court expressed the opinion that the exercise of some agency or trust in connection with the property would have the same effect as possession with reference to showing a prima facie case of fraud such as would permit the introduction in evidence of declarations of the grantor.

While it appears very clear to appellees that we are wrong, they have been unable to cite a single case directly in point, nor have we been able to find one. We believe it would be exceedingly dangerous to permit the introduction in evidence of such declarations, especially as in this case, when they do not purport to reproduce what was said by the grantor to the grantee, but merely the grantor’s understanding of the purpose she had in mind in making the deed.

No trust can be created by the declarations of the grantor made after the delivery of the deed, and yet by admitting such declarations in evidence the practical effect may be to permit the creation of the trust by such declarations. So far as this case is concerned, the conduct of the grantor in remaining on the premises with the grantee is thoroughly explained, and had no reference to the trust attempted to be shown, for that trust was not alleged, to exist in favor of the grantor, but of other parties, and we are convinced that to permit the introduction of the. declarations upon any technical theory, based upon the fact of the grantor’s remaining on the premises, would be wrong. In the case of McKnight v. Reed, 30 Tex. Civ. App. 204, 71 S. W. 318, it was held that declarations of a grantor made subsequent to the execution of deeds to his granddaughters, and subsequent to the delivery of the deeds to his daughter, to be held until his death, were not admissible for the purpose of showing that the land was given to the grantees as an advancement to be charged against their portion of their father’s estate. While the opinion fails to state that the grantor remained in possession of the land, it was contended upon motion for rehearing that such was the case, and the' testimony supported the contention.

We conclude that we erred in sustaining the contention that the judgment was erroneous in that it awarded appellees a foreclosure of the vendor’s lien. The mere fact that none of the notes had matured at the time the appellees’ last amended cross-bill was filed would not preclude the court from awarding appellees such relief under their prayer for general relief as they were entitled to under their pleadings at the date of the trial. The proposition of appellants submits the contention just considered, and we are limited to same. As all notes are now due, no question will arise upon another trial with regard to whether appellees, if they sustain their theory are entitled to ownership of that part of the indebtedness which is due.

In view of the fact that the judgment is reversed on account of the admission of certain testimony which was materially prejudicial to appellant, we deem it unnecessary to discuss the evidence or to announce any conclusion with reference thereto.

Appellees’ motion for rehearing is overruled, and also appellant’s motion.
      <@=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      @=sPor other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    WELDER et al. v. STATE.
    (No. 5677.)

    (Court of Civil Appeals of Texas. Austin.
    May 30, 1917.
    On Motion for Rehearing, June 27, 1917.)
    1. Navigable Waters <@=»36(2) — Ownership op Bed^Grant.
    If the owners of land riparian to a navigable lake own the bed of the lake, it is because the land was specifically granted, since land cannot be appurtenant to land.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 180-183, 185, 187, 196.]
    2. Common Law <@=>11 — Effect—Statutes. _
    _ Common law, as modified by local conditions, is in force in Texas.
    [Ed. Note. — For other eases, see Common Law, Cent. Dig. §§ 9, 12.] t
    3. Waters and Water Courses <@=»34 — Statutes Governing.
    The common law as to nonnavigable streams is the rule of decision in Texas.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 27, 28.]
    4. Boundaries <@=»3(9) — Control—Quantity.
    While excess in quantity will be disregarded where the boundaries of a survey can be otherwise ascertained with reasonable certainty, yet, in the absence of such ascertainment, quantity; may be looked to in determining the boundaries.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. § 41.]
    5. Waters and Water Courses <@=>89 — Grants of Public Lands — Presumptions— Shore of Lake.
    Though the grantee may hold an excess by reason of the calls in his grant for natural or artificial objects to which his line will be extended, it was never the intention of the state to grant an excess in any survey, and therefore where a line calls for the shore of a lake it will not be extended a mile to reach the center of the lake.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 91, 92, 107.]
    6. Waters and Water Courses <®=389 — Navigable Waters — Control of Cause.
    The common-law doctrine of extending the call for a nonnavigable stream to the center thereof does not apply to calls for a navigable lake as a boundary.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 91, 92, 107.]
    7. Boundaries <@=>1 — Control of Calls — Intention of Parties.
    The controlling issue in all boundary suits is the intention of the parties.
    [Ed. Note. — For other cases, see Boundaries, <^ent. Dig. § 1.]
    8. Boundaries <§=>33 — Control of Calls— Quantity.
    Where a grant of public lands called for a given number of acres, the presumption is that the government did not intend to grant more, and the lines would not be extended to include approximately a 40 per cent, greater acreage.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 146-152.]
    9. Boundaries <§=>9 — Control of Calls — Quantity.
    Grants conveying a given number of acres and stating the amount of arable and of pasture lands in each will not be extended to embrace the area of a lake bed which is neither arable nor pasture land.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 77-89.]
    10. Navigable Waters <®=>37(4) — Grants of Lands — Bed of Lake — Presumptions.
    Where Vernon’s .Sayles’ Ann. Civ. St. 1914, art. 5338, required that all surveys on navigable waters should front one-half of the square thereon, and run back at right angles, and surveys upon a lake were so made, it was evidently regarded as a navigable lake, so that its bed would not 'be included'in the grants.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 211, 218-222.]
    11. Waiers and Water Courses <@=>S9 — Control of Calls.
    A call for the margin, edge of water, high or low water mark, or shore or bank of a lake excludes the bed thereof.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent Dig. §§ 91, 92, 107.]
    12. Navigable Waters <@=>1(3) — How Determined — Capacity — “Navigable Waters.”
    Whether waters are navigable is to be determined by their capacity and not by the particular use at the time of inquiry and a lake averaging four feet in depth from which fish are taken and which is capable of use for floating logs -or light draft boats is navigable.
    [Ed. Note. — For other cases, see Navigable .Waters, Cent. Dig. § 7.]
    13. Navigable Waters <@=>37(2) — Sale by State — Power to Sell.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 3980, a navigable lake cannot be sold, but under article 4Y21b is under the jurisdiction of the game, fish, and oyster commissioner.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. § 203.]
    Appeal from District Court, Travis County ; Chas. A. Wilcox, Judge.
    Suit by the State against John J. Welder and others. Judgment for plaintiff, and defendants appeal. Affirmed. On motion for rehearing.
    Motion overruled.
    Batts & Brooks, of Austin, and Proctor, Vandenberge, Crain .& Mitchell, of Victoria, for appellants. B. F. Looney, Atty. Gen., G. B. Smedley, Asst. Atty. Gen., and Elmer Tates, of Edinburg, for appellee.

      Application for writ of -error pending in Supreme Court.

   Findings of Fact.

JENKINS, J.

The state of Texas sued the appellants in trespass to try title to recover'5,823 acres of land described by metes and bounds, and alleged to constitute the bed of Green Lake in Calhoun county, Tex. Two sets of field notes were introduced in evidence, one made in July, 1913, when the lake was dry, embracing 4,927 acres, in which the margin of the lake was run as called for in the field notes of the surrounding surveys; the other made by the same surveyor in November, 1913, .when the lake was full, and which was run along the water’s edge, and embraced 5,823 acres. The difference was occasioned by the erosion of the water on the northeast side of the lake.

The case was tried before the court without a jury, and the court gave judgment for the state upon the field notes of the survey made when the lake was dry. In other words, the state recovered all of the bed of the lake not included in the field notes of the surrounding surveys when run out according to their calls for course and distance. Green Lake is oval in form, and is about 3% miles long by about 2 miles wide. It is entirely surrounded by patented surveys, as shown by the following sketch from the official map of Calhoun county:

The court filed the following statement of facts:

“I. Green Lake, the subject of controversy in this case, is an inland fresh water lake, situated in Calhoun county, Tex., about 2% miles from Guadalupe river, and is situated in the valley of the Guadalupe river, the eastern portion of said lake bordering upon the foothills which mark the beginning of the upland. The lake is shallow at the margin, gradually becoming deeper for a distance of a few hundred feet where it attains its maximum depth, the remainder of the bottom of the lake being practically level, and the water being of an average depth at the ordinary water stage of about 4 feet. On occasions of any considerable overflow of the Guadalupe river (which occur not infrequently) the lake is filled by the flood waters of the river, and this is the main source of the renewal of its waters. During times of large overflows the whole valley of the river to the foothills, including the lake and all of the surrounding country, is submerged. .The lake contains approximately 6,000 acres of land, and is about 13 miles in circumference.
“II. Green Lake has been used and is valuable principally as a watering place of stock belonging to the owners of the surrounding lands. However, fish in considerable quantities have 'been taken from it and sold, and boats have been operated upon it for the purpose of taking fish; and the lake is of some value as a fishing preserve.
“III. Considering not only the size of the lake and the depth of its water, but also the variableness of the depth of the water, the nature of the surrounding country, its frequent overflows, and all the circumstances of the case, it is not probable that it will ever bo of any public value as a highway of commerce.
“IV. All of the lands surrounding the lake are now owned by the defendants, but were originally granted in small parcels to different persons and at different times, reference being here made to the title papers evidencing such grants, which were introduced in evidence in this' case, for the description of the land granted and for such other facts with reference thereto as may be material.
“V. I find that each of the grants of land surrounding said lake contained the full number of acres called for in such grants without including therein any portion of the bed of said lake; and that to hold that such grants include the bed of the lake would have the effect of nearly doubling the quantity of land called for in the grants.
“VI. All the defendants except Winn T. Harvey, who has disclaimed, are claiming the title to the lands under the waters of said lake by virtue of the ownership of the grants surrounding it.
“I find that the survey made by I-Ielmbeck in the year 1913, when the lake was dry, represents approximately the line to which the grants surrounding the lake extends when constructed according to their calls, and this line has been adopted as the true boundary line of those portions of the survey bordering upon the lake.”

And at the request of appellee the court made the following additional findings of fact:

“I find that the land around Green Lake has always been, for the most part, grazing land, and has always been and is now thinly settled, and that there has been no trade in said vicinity sufficient to warrant any considerable use of Green Lake for commercial purposes other than fishing and other than the hauling of wood, as testified by the witness Henry Jordan. I find that in the year 1861 Henry Jordan built a sailboat 20 feet long with two masts and drawing 2 feet of water when carrying three cords of wood, and that he used the same for a considerable time in carrying firewood across the lake for a man named Fleming, who lived near the lake, and that during the same time the land was used by light skiffs and boats for hunting and fishing. I further find that from the year 1900 to the year 1912, the witness W. T. Harvey made a business of fishing on Green Lake and realized from $50 to $100 a month from the sale of fish that he caught in tho lake; that in fishing he used a sailboat 20 feet long and a motoi'boat 18 feet long, both drawing from 18 to 24 inches of water; and that he had from 40 to 50 people fishing for him with seines on the lake at one. time; that at said time the lake was almost dry and the fish, by reason of reduced area and depth of the water were concentrated and caught in greater quantities than at any other time; and that while Harvey had said ’boats on the lakes other persons had small sail and motor boats on the lake to the number shown by the statement of facts which they used for fishing. I find that in its ordinary condition Green Lake, having a depth of 4 feet over the greater part of the lake, is susceptible of use for fishing, pleasure, and commercial boats, provided the boats are of light draft.”

■ The findings of fact are sustained by the evidence, and we adopt them as our own.

These surveys were originally owned f>y the parties to whom the certificates, by virtue of which said surveys were Made, were issued or to their assignees, but at the time of'the trial they were all owned by the appellants herein.

Opinion.

The issue in this case is not whether the state could grant title to land in the bed of a natural, permanent fresh water lake, but has it done so'as to Green Hake? If so it is solely by reason of the fact that it has granted all of the land contiguous to and bordering upon said lake, and not by reason of any description in the grant which otherwise covers the bed of the lake. Neither is it a question of appurtenance, or riparian rights. If the appellants are the owners of the land covered by Green Lake, it is because such land has been granted to them, and not because it is appurtenant to land which they own. Land cannot be appurtenant to land. As to riparian rights, the judgment of the trial court expressly reserves such rights to appellants. The appellants plant them selves upon the doctrine of the common law —that a conveyance of land on a nonnavigable stream conveys title to the center of such stream, their contention being that the common law in this regard is modified by statute in this state only to the extent of declaring streams SO feet wide or over to be navigable.

It is true that the common law as modified by our local conditions is in force in Texas. But the common law, as has been aptly said, is a system of principles, and not a collection of arbitrary rules. The common law claims to 'be the perfection of reason, and it is one of its maxims that where the reason ceases the law ceases; or, as applied to this country, it may be said that where the reason never existed the law never existed. The reason why no streams were classed as navigable in England, except those in which the tide ebbed and flowed, -was that no others in that country were navigable in fact. Bqt it is absurd to apply this test to such rivers as the Mississippi, the Missouri, and the Ohio.

Mr. Justice Brown, in Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, L. R. A. 1915E, 1, Ann. Gas. 19150, 1011, said:

“Tire effect of the act of 1840 was not to * * * put into effect the body of the common law,, bat to make effective the provisions of the common law so far as they are not inconsistent with the conditions * * * of our people.”

Mr. Chief Justice Gaines, in Land Co. v. McClelland, 86 Tex. 185, 23 S. W. 576, 1100, 22 L. R. A. 105, declared that the common law as to inclosing lands was not applicable to conditions in this state. In Swayne v. Oil Co., 98 Tex. 605, 86 S. W. 742, 69 L. R. A. 986, S Ann. Cas. 1117, the same learned Judge, speaking for the court, said:

“So in' other instances rules established in England were not regarded as of controlling authority in this state, for the reason that it was thought that the conditions here were so different from those existing in England that if the conditions in that country had been the same as in this, the ruling there would have been different.”

In Railway Co. v. Smith, 72 Miss. 683, 17 South. 80, 27 L. R. A. 764, 48 Am. St. Rep. 579, the Supreme Court of Mississippi said:

“It is a mistake to assume that the common law of England, though adopted and accepted as the law of the state, and though unchanged by statute, is under all circumstances and conditions to be applied as the local common law”— citing Vicksburg Co. v. Patton, 31 Miss. 156, 66 Am. Dec. 552, Green v. Weller, 32 Miss. 650, Crane v. French, 38 Miss. 503, and Sinai v. Railroad Co., 71 Miss. 547, 14 South. 87.

See, also, 5 R. C. L. p. 809.

The common law as to nonnavigable streams is the rule of decision in this state. Dutton v. Vierling, 152 S. W. 450; Rhodes v. Whitehead, 27 Tex. 304, 84 Am. Dec. 631; Landa v. Muller, 31 Tex. 265. Also as to roads, streets, and alleys: Mitchell v. Bass, 26 Tex. 372; Bond v. Railway Co., 15 Tex. Civ. App. 281, 39 S. W. 978; Cocke v. Railway Co., 46 Tex. Civ. App. 363, 103 S. W. 407. In the language of a modem advertisement, “there is a reason” which applies to such cases in this state with equal force as in England.

The area of nonnavigable streams (streams less than 30 feet wide under our statute) is small and is valueless except to the owner of the adjoining land, and it is therefore a reasonable presumption that the owner of such streams, in conveying the land upon each side thereof, did not intend to reserve the narrow strip of land in the bed of the creek. Dutton v. Vierling, supra. The same reason applies to roads, streets, and alleys. The land in front of a survey bordering on a large lake is not inconsiderable, but in many instances would exceed the area called for in the survey. While excess in quantity will be disregarded where the boundaries of a survey can be otherwise ascertained with reasonable certainty, yet, in the absence of such ascertainment, quantity may be looked to in determining the boundaries. Scott v. Pettigrew, 72 Tex. 328, 12 S. W. 161. In Indiana v. Milk (C. C.) 11 Fed. 389, the court said:

“I do not think the -mere proprietorship of the surrounding lands will, in all cases, give ownership to the beds of natural nonnavigable lakes and ponds, regardless of their size. 'It would be unfair and unjust to allow a party to claim and hold against his grantor the bed of a lake containing thousands of acres, solely on the ground that he had bought and paid for the small surrounding fractional tracts — the mere rim.”

In Hodges v. Williams, 95 N. C. 331, 59 Am. Rep.. 242, the court, after stating the doctrine in reference to nonnavigable streams, said:

“We find no case where this principle has been applied to large bodies of water like this lake.”

In the instant case the acreage called for by the surrounding surveys aggregate about 13,000 acres, and the area of the lake is nearly 5,000 acres. Bui if it be assumed that Green Lake is a nonnavigable body of water, and that for this reason it is included in the surrounding surveys, the result would be the same if it contained 13,000 acres or more, and the surrounding surveys called for 5,000 acres, or less.

All land in this state was originally granted by the state by virtue of certificates or pre-emption surveys, by virtue of which the grantee was entitled to a given number of aeres and no more, and the law contemplated that such surveys should be actually made upon the ground. Though the grantee may hold an excess by reason of the calls in his grant for natural or artificial objects to which his line will be extended, it was never the intention of the state to grant an excess in any survey. The exception in the case of creeks, where it is not practicable to extend the line, is de minimis. In the instant ease, if the lines calling to run a certain distance to the lake required extensions in order to reach the lake, such extensions would be made, upon the theory that the surveyor made a mistake in measuring such lines, but this is quite a different proposition from extending a line a mile or more in order to reach a point in the center of a lake, when the call is for a point on the lake. Does the common-law doctrine as to a non-navigable stream apply in England also to lakes? We have been referred to no case which so holds, and we do not know of any such. Bristow v. Cormican, L. R. 3 App. Cases 641, cited in Hardin v. Jordan, 140 U. S. 371, 11 Sup. Ct. 808, 35 L. Ed. 428, is not authority upon this point. It did not involve the question of boundary or of riparian rights, but only the validity of plaintiff’s title to Lough Neagh, a large lake in Ireland, under an alleged grant from Charles II, and, as stated by Lord Blackburn:

“It was perfectly clear that the plaintiff in ejectment could recover only on the strength of his own title.”

To show that it was not held in Bristow v. Cormican that the owner of land bordering upon a lake owns the bed of the lake in front of his land, we quote from the decision in that ease as follows:

“Whether the rule that each adjoining proprietor, where there are several, is entitled usque ad filum aquse should apply to a lake is a different question. It does not seem very convenient that the proprietor of a few acres fronting on Lough Neagh should have a piece of the soil of the lough many miles in length tacked onto his frontage. But no question arises in this case as to the rights of the riparian proprietors among themselves, for no title is made by either party through any one as riparian owner.”

In Marshall v. Ulleswater, 3 Best & S. p. 741, decided in Q. B. 1862, the court said:

“Whether the soil of lakes, like that of fresh water rivers, prima facie belongs to the owners of the land or of the manors on either side, ad medium filum aquse, it is not necessary in this case tó determine.”

In Bloomfield v. Johnson, 8 C. L. 68, it was held that the grant of land bordering on a lake did not carry title to any portion of the lakebed. The court said:

“The law as to riparian ownership of the banks of a river or stream flowing between adjoining proprietors cannot here dispense with a grant of the land covered with water. * * * I am not prepared to extend the presumption that the bed and soil of a stream belongs to the riparian proprietors ad medium filum aquse, to a large inland lake like Lough Erner.”

This question has given rise to considerable litigation in the different states of the Union, though this appears to be the first of its kind in this state. As said in Lembeck v. Nye, 47 Ohio, St. at 336, 24 N. E. 689, 8 L. R. A. 581, 21 Am. St. Rep. 828:

“The authorities * * * are in [hopeless] conflict, and seem to be incapable of reconciliation.”

The contention of appellants is supported by the decisions of Arkansas (Glasscock v. Box Co., 104 Ark. 154, 148 S. W. 248), Minnesota (Scheifert v. Briegel, 90 Minn. 125, 96 N. W. 44, 63 L. R. A. 296, 101 Am. St. Rep. 399; Lamprey v. State, 52 Minn. 181, 53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. Rep. 541), Michigan (Jones v. Lee, 77 Mich. 35, 43 N. W. 855), Utah (Poynter v. Chipman, 8 Utah, 442, 32 Pac. 690), and Ohio (Lembeck v. Nye, 47 Ohio St. 336, 24 N. E. 686, 8 L. R. A. 578, 21 Am. St. Rep. 828).

The Supreme Court of New York in Gouverneur v. Ice Co., 134 N. Y. 355, 31 N. E. 865, 18 L. R. A. 695, 30 Am. St. Rep. 669, after citing a number of cases in which it was held that the common-law doctrine as to non-navigable streams did not apply to large lakes, held that it did apply to “small non-navigable lakes.” In that ease the lake contained about 45 acres. It had formerly been owned by the Fowlers, who had conveyed all the land surrounding it. On the other hand, the contrary doctrine is held in Illinois (Fuller v. Shedd, 161 Ill. 462, 44 N. E. 286, 33 L. R. A. 146, 52 Am. St. Rep. 380), Indiana (Brophy v. Richeson, 137 Ind. 114, 36 N. E. 424), Iowa (Noyes v. Collins, 92 Iowa, 566, 61 N. W. 250, 26 L. R. A. 609, 54 Am. St. Rep. 571), Massachusetts (Paine v. Woods, 108 Mass. 160), Maine (Stevens v. King, 76 Me. 197, 49 Am. Rep. 609), North Carolina (Hodges v. Williams, 95 N. C. 331, 59 Am. Rep. 242), New Hampshire (Mfg. Co. v. Robertson, 66 N. H. 1, 25 Atl. 718, 18 L. R. A. 679), New Jersey (Kanouse v. Slockbower, 48 N. J. Eq. 42, 21 Atl. 197), Vermont (Fletcher v. Phelps, 28 Vt. 257), and Wisconsin (Pewaukee v. Savoy, 103 Wis. 271, 79 N. W. 436, 50 L. R. A 836, 74 Am. St. Rep. 859).

Without regard to their numerical strength, we think the decisions which hold that the common-law doctrine of extending the call for a nonnavigable stream to the center thereof does not apply to calls for a lake as a boundary, are supported by the better reason. One reason for the conclusion which we have reached in this matter.'is the practical impossibility of partitioning a lake in accordance with this doctrine. For illustration: If a lake was a mile square and one survey was located upon each of its sides, with a frontage of one mile, the surveys upon the north and upon the south being extended to the center of the lake would embrace all of the land in its bed. Likewise, the surveys upon the east and upon the west would embrace all of such land. The difficulty is not lessened if the lake is oval with irregular shores, as will.readily be seen by attempting such extension of the surveys surrounding Green Lake as delineated on the sketch appearing in our findings of fact, supra. It has been suggested that an equitable partition of the lake might be made, but upon ■what theory will equity deprive one of his legal title to a portion of his land, which he does not hold in trust. The suggestion of an equitable partition is a recognition of the fact that the owner of land fronting on a, lake is not the legal owner of the land in front of his.survey to the center of the lake.

The controlling issue in all boundary suits is the intention of the parties to the grant as evidenced by its calls read in the light of the surrounding circumstances. We think that the learned trial court was correct in the following conclusion of law filed herein:

“I conclude that the calls of the respective surveys surrounding the lake do not indicate an intention to embrace the waters of the lake, but, on the contrary, indicate an intention to exclude the same.”

Practically all cases construing the calls for a creek, road, street, or alley, to extend to the center thereof, state that an exception to this rule is where it appears that such creek, street, or alley was meant to he excluded from the conveyance. That such appears to have been the intention in the instant case we deduce from the following facts:

(a) The surveys were made by virtue of certificates calling for a definite number of acres, and the presumption is that the government did not intend to grant more. If the surveys be construed to cover the lake, the aggregate acreage will be increased from about 18,000 acres to about 18,000- acres. Each of said surveys has its full acreage if the lake be excluded.

(b) The Venites and the Lopez "surveys state, as was then required by law, the amount of arable and the amount of pasture land in each. The bed of the lake is neither arable nor pasture land.

(c) The law of tins state required that all surveys on navigable water courses should front one-half of the square on such water course, and run back at right angles with the general course thereof, if previous surveys permitted. R. S. art. 5338. The surveys fronting on Green Lake conformed to this ar-tide, which shows that both the state and the owners of such surveys regarded the lake as navigable water. If so, it must be presumed that it was not intended to include any part of same in said surveys, even though it may not have been navigable in fact or within the meaning of the common law, or of the laws of this state.

(d) A call for the margin, edge of water, high or low watermark, or shore or hank of a lake excludes the bed thereof. In Hardin v. Jordan, 140 U. S. 371, 391, 11 Sup. Ct. 808, 815, 35 L. Ed. 428, 436, cited by appellants, the court said:

“If the margin is named as the boundary the case is different; the land under the water being expressly excluded.”

In Lembeck v. Nye, 47 Ohio St. 351, 24 N. E. 689, 8 L. R. A. 582, 21 Am. St. Rep. 828, dted by appellants, the court said:

“ ‘Margin of the lake’ is a term of unequivocal import, meaning the line where the earth and water meet around the lake; by the use of these words the parties have declared their intention to make, not the middle, but another part, of the lake — tlie edge of the water — the boundary line” — citing- McCullock v. Aten, 2 Ohio, 308; Lamb v. Rickets, 11 Ohio, 311; Hopkins v. Kent, 9 Ohio, 13; Gould on Waters, § 199.

As to a call for “bank,” see Kingman v. Sparrow, 12 Barb. (N. Y.) 201; Hatch v. Dwight, 17 Mass. 289, 9 Am. Dec. 145; People v. Supervisors, 125 Ill. 9, 17 N. E. 147. As to “edge,” see Kanouse v. Slockbower, 48 N J. Eq. 42, 21 Atl. 197. As to “low-water mark,” see Brophy v. Richeson, 137 Ind. 114, 36 N. E. 424. As to “high-water mark,” see Cook v. McClure, 58 N. Y. 437, 17 Am. Rep. 270. As to “shore,” see Axline v. Shaw, 35 Fla. 305, 17 South. 411, 28 L. R. A. 391, and Gouverneur v. Ice Co., 134 N. Y. 355, 31 N. E. 865, 18 L. R. A. 701, 30 Am. St. Rep. 669, wherein it is said:

“A boundary line * * * ‘along the shore’ of a fresh water stream, does not extend the grant to its center (Child v. Storr, 4 Hill [N. Y.] 369), and a like construction is applicable to a boundary by the bank of such a stream (Starr v. Child, 5 Denio [N. Y.] 599; Halsey v. McCormick, 13 N. Y. 296). In those cases the prescribed limitation of the boundary lines to the shore and bank did not permit the extension of the grant by construction to the thread of the stream.”

In the instant case the field' notes of the Venites, Lopez, Doyle, Bonney, and I. & G. N. Ry. 'CO. No. 3 call for corners on the margin of the lake, the Pollon calls for the bank, the Timmons and B elf our call for the shore, and the I. & G. N. No. 4 calls for the edge of the lake. The Venites calls also for the bank, and the Doyle, Bonney, and I. & G. N. No. 3 call also for the edge of the lake. The meanders of the shore of the lake are called for- by course and distance, which are found to corréspond with the shore of the lake as it now exists, except where the waters have eaten into the bank slightly next to the bluff on the east side. Some of the bearing trees called for on the margin of the lake were found and identified. We think the judgment, in this case should be affirmed upon another ground which the trial court refused to find as a fact or conclusion of law, viz. that Green lake is a navigable body of water, and upon which refusal of the court so to find the appellee has filed a cross-assignment of error.

The old common-law idea of navigable waters were those used as highways of commerce, and hence no commerce being carried on fresh water inland streams in England, such streams being small and shallow, only the sea and tidal waters connected therewith were regarded by the common law as navigable. But, as the entire internal commerce in this country, prior to the building of railroads, was carried on our large rivers and great lakes, the tide water test was found not applicable to our conditions, and another test was applied, viz, navigability in fact. This test is not to be applied as of use made of a stream or lake at the particular time of inquiry, but as to its capacity for use, and the possible demands which may be made by the future settlement of the country. Jones v. Johnson, 6 Tex. Civ. App. 262, 25 S. W. 651; Lumber Co. v. Thompson, 113 S. W. 564; State v. Land Co., 127 Tenn. 575, 158 S. W. 748, Ann. Cas. 1914B, 1043.

Green lake having an average of 4 feet in depth, it had sufficient capacity to float boats large enough to carry extensive commerce. It was shown in State v. Land Co., supra, that a five-ton vessel 59 feet 2 inches long, and 15 feet 9 inches wide drew about 12 inches of water loaded, and that steamers 65 to 100 feet in length, and from 15 to 20 feet in breadth, draw from 15 to 24 inches of water loaded.

Behind all definitions of navigable waters lies the idea of public utility. Waters, which in their natural state are useful to the public for a considerable portion of the year are navigable. Boats are mentioned in the decisions because boats are the usual means by which waters are utilized by the public, and commerce is usually mentioned because carrying produce and merchandise is the usual public demand for such waters. But floating logs has frequently been held to be navigation, and hunting and fishing, and even pleasure boating, has been held to be proper public uses. State v. Land Co., supra, 127 Tenn. 575, 158 S. W. 750; Heyward v. Mining Co., 42 S. C. 138, 19 S. E. 963, 28 L. R. A. 42, 50, 46 Am. St. Rep. 702.

Why should not fishing be a proper public use? In England fishing has been an important industry from earliest times, and has been the subject of much litigation. In this state in the days of free land and free grass, when every one fished wherever he pleased, but little thought was given to the distinction between private and public waters. But fish are capable of being made an important source of food supply, and lakes capable of becoming an abundant source of such supply ought not be decreed to have been granted to private individuals merely as an incident to land upon, the shores of such lakes. Rather, we think it ought to be presumed, in the absence of proof to the contrary, that the state, as trustee for the people, meant to reserve such lakes for the use of the public. It was shown by the evidence that for many years boats have been used on Green Lake for fishing purposes, and that without asking the consent of the owners of the surrounding land. One witness testified:

“I believe that more than $100,000 worth of fish have been caught in this lake in the last 15 or 20 years.”

Under the policy which has recently been inaugurated in this state of stocking streams and lakes with fish, the supply may reasonably be expected to greatly increase in the near future. We deem the following quotation from. Fuller v. Shedd, 161 Ill. 462, 44 N. E. 286, 33 L. R. A. 146, 52 Am. St. Rep. 380, pertinent to the facts of this case:

“The policy of the state of recent years has been to stock its waters, both streams and lakes, with fish, as a means of giving' cheap and valuable food to her citizens and with this purpose regular appropriations and expenditures are made. If we depart from the reasonable rule we have established, the small nonnavigable lakes will become the private waters of riparian owners, pertinent to their lands, with the exclusive rights thereon as to boating, fishing and the like, from which the body of the people would be excluded — a principle inconsistent with and not suited to the condition of our people or called for as a rule of law.”

Hie “reasonable rule” referréd to is that the law as to extending calls for nonnavi-gable streams to the center thereof does not apply to lakes, a rule which we approve, but we also think it a reasonable rule that lakes large enough to be useful to the public for boating and fishing should be held to be public and not private property.'

Under the law as it now exists in this state, Green Lake cannot be sold (R. S. art. 3980), but is under the jurisdiction of the game, fish, and oyster commissioner (article 4021b).

For the reasons stated, the judgment of the trial court is affirmed.

On 'Motion for Rehearing.

Appellants in their motion for a rehearing assert that we overruled the findings of fact made by the trial court as to the navigability of Green Lake. In this appellants are mistaken. The trial court found certain facts as to the size and depth of the lake, and the purposes for which it had been and probably would be used, and from these facts deduced as a matter of law that Green Lake was not navigable. We accept these factd and deduce the opposite legal conclusion. However, as appears from our opinion herein, we would have affirmed the judgment of the trial court upon other grounds without reference to whether or not Green Lake is navigable.

Motion overruled.
      ^sz?For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: I-IUFF, C. J.

text:
    SECURITY INS. CO. v. KELLY.
    (No. 1180.)
    (Court of Civil Appeals of Texas. Amarillo.
    May 30, 1917.
    Rehearing Denied June 27, 1917.)
    1. INSURANCE &wkey;?574(7) — Adjustment of Loss — Award of Arbitrators.
    In an action on a fire policy, where an award made pursuant to the provisions of the policy was irregular in omitting to state separately sound value and damages, and in failing to contain an itemized statement of the damages, and the award was grossly inadequate and out of proportion to the actual loss on the house, all of the irregularities, together with the inadequacy of the award, held to authorize a finding that in making the award there was a mistake as to the amount, or that the appraisers intentionally found less than necessary to restore the building or cover the loss.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1433, 1434.]
    2. Insurance <&wkey;574(2) — Loss—'Validity of Award — Failure to Select Umpire.
    Where a fire policy provided for the appointment of appraisers in case of disagreement as to the amount of loss, and required the appraisers selected by the parties to first select a competent and disinterested umpire, and that the appraisers then estimate and appraise the loss, stating separately sound value and damages, and, that if they failed to agree, to submit their differences to the umpire, and the award of any two should determine the loss, although, where the appraisers agreed to the award, the failure alone to select an umpire would be immaterial, while the third party to be selected was designated “umpire,” the proper construction of the policy is that he was to act with the other appraisers and failure to select such umpire evidences an irregularity which had the result of making the proceedings ex parte on the part of the appraisers and is a circumstance which may be looked to in considering whether the award was fair.
    3. Insurance <&wkey;574(2) — Loss—Appraisers— Award — Sufficiency.
    Where there was no agreement that notice should be given of the time and place of the investigation by the appraisers to determine the amount of the loss under a fire policy or that either party should be present, the fact that no notice was given and no opportunity offered to the parties to present evidence would not of itself render the award invalid.
    4. Insurance <&wkey;669(13) — Actions—Instructions.
    In an action on a fire policy in which the defense was an award alleged to have been made under the terms of the policy, where the case was submitted upon special issues, and on the face of the proceedings the award was irregular, if not actually void, refusal of an instruction that in the absence of fraud, etc., the award was valid and binding was not error.
    [Ed. Note. — For other cases,- see Insurance, Cent. Dig. §§ 1781, 1782.]
    5. Insurance <&wkey;668(14) — Submission of ISSUES — Question OF LAW OR FACT.
    In an action on a fire policy in which the defense was an award alleged to have been made under provisions of the policy, and all the issues of fact were covered by the instructions, an issue asking the jury to state whether the award was valid was properly refused, as it involved a question of law and fact.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1747, 1749, 1750, 1766, 1768.]
    6. Appeal and Error &wkey;>1050(,l) — Review-Prejudicial Error.
    In an action on a fire policy in which defendant introduced an award alleged to have been made pursuant to the terms, of the policy, plaintiff’s casual statement, when called upon by plaintiff’s agent for appraisement and requested to read the - contract, that she did not then know that the clause authorizing the award was contained in the contract, but that she then read it, was not likely to have influenced the jury, and hence was not prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157.]
    7. Trial <&wkey;352(l) — Special Issue — Award —Fraud.
    A special issue, “Did the appraisers, in awarding to the insured $398.65, on account of loss and damage to the building, intentionally allow her less under said item of the policy than it would cost to repair or replace the same with material of like kind and quality?” sufficiently submitted the question of fraud on the part of the arbitrators, and asked the jury to find in what it consisted. ‘
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 840.]
    8. Insurance <&wkey;499 — Fire Insurance — Nature of Damages.
    In an action on a fire policy, recovery could not be had beyond the actual cash value of the property destroyed with deduction for depreciation.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1274.]
    9. Trial &wkey;>351(2) — Fire Insurance — Action on Policy — Special Issues — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1984a, regarding submission of special issues, if defendant desired a finding of the jury upon the cash value of the building, it should have requested a special issue to find such issue of fact, and by not requesting the finding practically left the question to the court to find the cash value.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 837.]
    10. Appeal and Error &wkey;>1062(1) — Review— Harmless Error — Submission of Issues.
    In an action on a fire policy in which the case was submitted on special issues, though recovery could not be had beyond the actual value with deduction for depreciation, an issue requiring the jury to find what it would have cost the insured immediately after the fire to repair or replace the building with material of like kind and quality was not reversible error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4212.]
    11. Insurance <&wkey;>572 — Arbitration Proceedings — Right of Party to .be Present.
    Where the extent of loss under a fire policy was submitted to arbitration, as the terms of the policy did not exclude the insured from going before the appraisers, she was within her rights in so doing and making a request to be heard.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1422, 1423, 1427, 1429.]
    12. Trial &wkey;>350(l) — Action on Fire Policy —Special Issue.
    In an action on a fire policy in which there was no evidence that the insured secreted any of the furniture in places‘where it could not be examined a refused issue as to whether the adjuster told the insured she might remove all her furniture was immaterial.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 828.]

      13. Trial <&wkey;350(l) — Insurance — Arbitration of Ross — Award—Submission of Issues — Objection.
    The fact that the insured under a fire policy instituted a suit and does not rely on the award, but ignored it and assails it as unjust and obtained by fraud and partiality of the appraisers, is sufficient to show that she objected to it, and there was no necessity of submitting the issue whether or not she objected.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 828.]
    14. Insurance <&wkey;576(l) — Fire Insurance— Appraisemeno^Waiver.
    The insurer, by standing on the validity of an award, waived any further right to demand additional appraisement.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 1436.]
    Appeal from District Court, Dallas County; W. F. Whitehurst, Judge.
    Suit by Mrs. E. H. Kelly against the Security Insurance Company. Judgment for plaintiff, and defendant brings error.
    Affirmed.
    Thompson, Knight, Baker & Harris and Will C. Thompson, all of Dallas, for plaintiff in error. C. M. Smithdeal, of Dallas, for defendant in error.
   I-IUFF, C. J.

Mrs. E. H. Kelly, defendant in error, instituted suit against the plaintiff in error on an insurance policy issued January 14, 1912, for the term of three years, covering loss of $1500 on a building and $500 on furniture; that the property burned and the loss was sustained July 31, 1913; that the policy at that time was in force. She claimed damage to the building of $1095 and $500 on the furniture in the building, which she alleged at the time was valued at $1,621.50. The defendant answered by general and special exceptions and answer, and among other things pleaded that under the policy the damage was appraised by appraisers at the amount of $398.65, and other matters not necessary to set out. The policy contained the following provision:

“In the event of disagreement as to the amount of loss the same shall be as above provided, ascertained by two competent and disinterested appraisers, the insured and this company each selecting- one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and failing to agree shall submit their differences to the umpire, and the award 'in writing of any two shall deter1 mine the amount of such loss. The parties thereto shall pay the appraisers respectively selected by them and shall bear equally the expenses of the appraisal and the umpire.”

The parties in this case, after proof of loss had been made by Mrs. Kelly, failed to agree.. The plaintiff in error demanded an appraisement under the policy and the parties thereto entered into an agreement, the plaintiffs in error selecting T. O. O’Reilly and defendant in error selecting Wm. Banks. In the agreement it was recited that the appraisers are to appraise the sound value and the loss and damage, and return an award in accordance with the terms and conditions of the policy. The appraisers took an oath, stating therein that they were not interested in the loss, and th.at they would use their best efforts to arrive at a just award. They afterwards .returned an award; under the first item of the policy “Dwelling” they found loss and damage $398.65. There was no finding as to the second item, “Furniture,” and no statement as to the sound value in the finding. It would appear that they used a blank form for the award and under the heading “Sound Value” nothing is stated. 'Mrs. Kelly, by a plea in answer to the plaintiff in error, attacked the award for irregularities, fraud, mistake, etc.

The first assignment urges that the trial court was in error in refusing plaintiff in error’s request to find for defendant in error only the sum of $398.65. This is the amount of the award allowed by the appraisers. It is insisted that the undisputed evidence shows there was no fraud, mistake, or accident in procuring the award. There is evidence from which it may he inferred that O’Reilly was partial and biased in favor of the plaintiff in error, and not a disinterested appraiser, and that Banks was incompetent and entirely controlled by O’Reilly, and that he was not in fact disinterested. There was no appointment of an umpire, as provided in the insurance policy. No notice was given to the parties of the time and place for appraisement, but the appraisers rejected any testimony, and refused to permit Mrs. Kelly to come before them. Their award does not pretend to appraise the damage and loss to the household goods, either those totally destroyed or partially damaged. They did not in their award state separately sound value and damages. They found only the damage to the dwelling to be ,$398.65. The evidence of three disinterested contractors and carpenters, who were employed by Mrs. Kelly at the instance of plaintiff, to make estimates as to the amount required to restore the building to its former condition, was, one made his estimate at $1095.60, another at $1150, and another at $1250; none placing it at less than $1095.00. The plaintiff in error also had an estimate made, but it was stated on the trial that they did not have it; however, the adjuster testified that it was over $500. The household goods destroyed and damaged amounted' to over $500, the amount for which they were insured. O’Reilly, the appraiser, said he did make an itemized statement of the lumber, hardware, etc., necessary to restore the building, but that he had not kept it but destroyed it. Banks made no pretense of having done so. The award does not itemize the damages or pretend to do so. In reading the evidence in this case we are impressed that the award is grossly inadequate and out of proportion to the actual loss on the house. This fact, with the irregularities, was sufficient we think to go to the jury, to determine whether the appraisers purposely and unjustly, in the interest of plaintiff in error, rendered the award less than the loss sustained. The clause in the policy required the appraisers selected by the parties to it, first to select a competent and disinterested umpire, and then to estimate and appraise the loss, stating separately sound value and damage; if they failed to agree to submit their differences to the umpire; the award signed by any two should determine the loss. It is doubtless true that under this provision where the appraisers agree to the award the failure alone to select an umpire would be immaterial.

Under the terms of the policy, however, it is evident by the clause that the first thing to be done, and before the appraisers enter upon the work, they should select an umpire; also, that he should participate in the award. The clause that any two could determine the loss indicates such was the purpose of the agreement.

“If by the agreement of submission the arbitrators in case of disagreement are to select a third person an award by the majority to be found the person so selected is a third arbitrator for it is plain that he is to act with the arbitrators first appointed.” R. O. L. vol. 2, p. 372.

While in this case the third party is designated “umpire” the very construction of the paragraph evidences he was to act with the other appraisers and if necessary, in case of disagreement, sign the award. If the agreement made the umpire an appraiser, in the sense that he should be present and sign the award in case of disagreement, it was necessary that he should have been first appointed, so he could have acted jointly with the others, and been given an opportunity to ■be present while considering the award. It has been held if such arbitrator is not given the opportunity to be present the award is invalid even if signed by the number of arbitrators required. Blin v. Hays, 2 Tyler (Vt.) 304, 4 Am. Dec. 738. Perhaps under the holdings of our courts the failure to comply with the agreement with reference to selecting the umpire would not render the award on that ground alone invalid, especially where there was no disagreement between the original appraisers. Forshey v. Railway Co., 16 Tex. 516. This action, however, yet evidences an irregularity which had the result of making the proceedings ex parte on the part of the appraisers. The policy had provided first for a third party who should be present and participate in the proceedings, and we believe that as a circumstance it may be looked to in considerhig whether the award was fair or not. Wiley v. Heard, 1 White & W. Civ. Cas. Ct. App. § 1205.

There was no agreement that notice I should be given of the time and place foor the I investigation or that either party should be present, and the fact that no notice was given and no opportunity offered to the parties to present evidence doubtless did not of itself render the award invalid. This appears to be the holding in the ease of Orient Insurance Co. v. Harmon, 177 S. W. 193. It will be noted, however, that it is suggested by the court in that case that there was neither allegation nor evidence of a request by the insurance company which was denied by the arbitrators to be heard as witness or otherwise. In this case it is alleged evidence was introduced, and the jury found Mrs. Kelly was denied this right. It occurs to us that it was never the purpose, under the terms of the policy, or of the agreement, to exclude the parties from appearing before the appraiser. There is nothing on its face to show that it should be a secret investigation or appraisement. The kind of property or that part of the building destroyed, the kind of material destroyed, must necessarily be ascertained from sources outside of the view of the appraisers. Most generally it is held to cast discredit upon an award when the parties are not present. 5 Corpus Juris, § 175. We understand, of course, that an agreement may be so drawn that a hearing before arbitrators will not be implied. The agreement herein stipulates the appraisers “shall then estimate and appraise the loss, stating separately sound value and damages.” The policy defines loss and damage to be synonymous. How appraisers could know the loss without some evidence before them is not clearly perceived. They must appraise what is not in their view. This must rest upon some sort of evidence; the kind of material, amount, price, etc., must be ascertained. The sound portion of the building left doubtless is in view, and might be left to the judgment of the appraisers without evidence. The contract required the sound value and damage should be stated separately. The award does not do so in this case.

Whatever this clause may mean, whether the sound value of the house before the fire or the sound value of that part of Ore building uninjured by the fire, in either event, the appraisers disregarded this specific direction. This might become very important. At what did they fix the value of the buiiding before the fire? Not only were their proceedings secret and ex parte and out of the view and presence of the parties to the contract, and without an umpire, which they were first required to select and did not, but their methods were secret. The plain direction to obtain the sound value and the damage was disregarded. Their procedure suggests gross neglect and carelessness, incompetence, or an intention to omit inquiry into essential matters under the power given them. Further, the appraisers omitted to return an award on the household goods, which under the policy and agreement they should have appraised and rendered an award. This award did not settle the issues but left the matter to be further determined by some other method. That they did not take into consideration the damage of the household goods, and did not pretend to make findings on that issue, is shown by the uncontroverted evidence. The reason for not doing so offered by O’Reilly the jury were warranted in finding unsatisfactory. American Ins. Co. v. Bell, 33 Tex. Civ. App. 11, 75 S. W. 319; Insurance Co. v. Moore, 46 S. W. 1131. All these irregularities, together with the inadequacy of the award on the building, we regard as being sufficient to authorize the finding that in making the award there wias a mistake as to the amount, or that the appraisers intentionally found less than necessary to restore the 'building or to cover the loss on the property insured. Royal Ins. Co. v. Parlin, etc., 12 Tex. Civ. App. 572, 34 S. W. 401.

The second 'assignment is based on the action of the court in refusing to instruct the jury that in the absence of fraud, etc., that the award for $39S.G5 was valid and binding. The proposition presented under this assignment is that ¡an award is presumed to be valid and can only be overcome by evidence, etc. This may be a correct proposition of law, and, ordinarily, we think the proposition true. This case, however, was submitted upon special issues, and we think the charge requested for that reason was properly refused. Under the clause in the policy the agreement of the parties, the oath of the appraisers, and the award show they did not proceed as directed. They did not select an umpire and did not find separately the sound value and damages, and did not appraise part of the property covered by the policy. On the face of the proceedings the award was irregular, if not actually void. The Bell and Moore Cases, supra. Unassailed, the award may have been presumed regular; under the evidence and from the face of the proceedings on the award its regularity was challenged, to say the least of it. We believe the court properly refused the charge requested.

We think the issue refused, of which the third assignment complains, that is asking the jury to state whether the award was valid, was properly refused. This was, we think, a question of law and fact. Authorities supra; Adams v. New York Co., 85 Iowa, 6, 51 N. W. 1149; Canfield v. Watertown Co., 55 Wis. 419, 13 N. W. 252. Wte regard the issues of fact submitted by the court to have covered the issue of fact involved in the requested issue.

There was no error in refusing the charge of which complaint is made under the fifth assignment. There was no ground alleged or submitted to the jury as to whether Mrs. Kelly knew the contents of the policy. Her mere casual statement that, when called, on by plaintiff’s agent for appraisement, and requested to read the contract she did not then know the clause was therein, but that she then read it. She did not claim to be deceived nor did she make any complaint on that ground. This casual remark is not at all likely to have influenced the jury. We think there was no necessity for the charge and no injury is shown.

The fourth, sixth and seventh assignments are overruled. The plaintiff in error requested the court to submit, “Did the appraisers make a fraudulent award?” If they should answer in the affirmative, then, “In what particular was same fraudulent?” Instead of those issues the court submitted:

“Did the appraisers, in awarding to the insured $398.65, on account of loss and damage to the building, intentionally allow her less under said item of the policy than it would cost to repair or replace the same with material of like kind and quality?”

The jury answered this issue in the affirmative. The court, we think, by the issue submitted the question of fraud on the part of the arbitrators, and asked the jury to find in what it consisted. If the appraisers intentionally so acted we believe that the court, as a matter of law, should declare fraud thereon. There are facts which would justify this finding as heretofore suggested by us.

By the eighth assignment it is urged that it was error to refuse requested instruction No. 5, which is to the effect that the measure of damages should not exceed the actual cash value of the property destroyed or damaged at the time, with proper deductions for depreciation, and not to exceed what it would cost to replace the property with material of like kind.

The ninth assignment complains that issue No. 3 submitted by the court should not have been submitted, which is1 as follows:

“What would it have cost the insured immediately after the fire to repair or replace the building with material of like kind and quality?”

As to the- personal property destroyed the court required the jury to find its actual cash value and also the actual damage to that injured. The provision of the policy relied upon is to the effect the company should not be liable beyond'the actual cash value of the property at the time of the loss or damage, to be ascertained according to actual cash value, with proper deduction for ■depreciation, and not to exceed what it would then cost the insured to repair or replace the same with material of like kind apd quality. It seems to us a recovery could not be had beyond the actual cash ■ value, with deduction for depreciation. However, this case was submitted upon special issues, and we believe under the statute, article 1984a, Arer-non’s Sayles’ Civil Statutes, the plaintiff in error should have requested a special issue to the jury to find the actual cash value of the building at the time of the loss, and in doing so to make proper allowance for depreciation. Calvin v. Neel, 191 S. W. 791, 794.

The cash, value of the building at the time of the loss was an issue of fact, which, if plaintiff in error desired a finding of the jury upon, he should have requested by a proper issue. Under the policy it was a question of fact more than a question of law. By not requesting a finding on the facts the plaintiff! practically left the question to the court to find the cash value. The issue as to what it would have cost the insured to then repair the building was also an issue of fact which the court, by the third issue, left to the jury. There is no such error assigned in this particular as will require a reversal of the case.

The tenth, eleventh, and twelfth assignments are overruled. We believe our general discussion sufficiently disposes of the issues here requested.

The thirteenth, fourteenth and fifteenth assignments are overruled. We think there is evidence of Mrs. Kelly that she was not permitted to be present before the appraisers. Our discussion of the first assignment sufficiently gives our view on the question here presented. The contract by its terms did not exclude the defendant in error from going before the appraisers, and it occurs to ius she was within her rights in going before them and making the request to be heard. We also cite, in addition to the above authorities', Redner v. Insurance Co., 92 Minn. 306, 99 N. W. 886; Harth v. Insurance Co. (Ky.) 102 S. W. 242.

The sixteenth assignment urges the court should have submitted the issues as requested, that is whether the adjuster told Mrs. Kelly she might remove all of her furniture from the premises. In the first place, tlio policy did not forbid her removing the furniture after the fire. The testimony shows she did store a part of her furniture with her son after the fire. Steele, the adjuster, told her, as testified to by him, that the goods not damaged, for which no damages' were claimed, could be moved but the other ought to be where they could be examined. There is no evidence or allegation that she secreted any of the property or placed it where it could not be examined. The issue as requested we think was immaterial.

The seventeenth and eighteenth assignments are overruled. The issue as submitted has suppQrt in the evidence to the effect that the appraisers made a mistake as to the amount necessary to restore the building.

The nineteenth and twentieth assignments are overruled. We do not think that the issues here objected to improperly single out certain issues of fact. There was evidence that there were household goods totally destroyed, and goods not destroyed, but damaged. It is unnecessary to review the evidence on these issues.

By the twenty-first assignment it is urged the court should have submitted the issue requested, whether Mrs. Kelly objected to the award. The fact that she instituted suit on the policy and does not rely on the award, but ignored it and assails it as unjust and obtained by fraud and partiality of the appraisers, is sufficient to show that she objected to it, and there was no necessity of submitting that issue. The issue made by the pleadings was1 whether she objected to it within a reasonable time. This issue was not requested to be submitted. Her laches in this particular are not alleged or proven so as to operate as an estoppel. It is not shown that the plaintiff in error was deprived of the right to demand a second appraisement by her conduct, if it ever had such right under the policy. By standing on the validity of the award the plaintiff has waived a further right to demand additional appraisement. Insurance Company v. Bell, 33 Tex. Civ. App. 11, 75 S. W. 319.

The twenty-second and twenty-third assignments are overruled for the reason above given, and because it does not appear that plaintiff ever tendered the amount due to Mrs. Kelly under the award or placed her in default. The evidence tends to establish without controversy that Mrs. Kelly at all times repudiated the findings of the appraisers. The plaintiff cites' us to no evidence in the record, or that any was offered that she at any time accepted the aw.ard, or that plaintiff ever offered to perform by paying the award. We think no injury is shown by refusing the requested issues.

Assignments from 24 to 27, inclusive, urge that the findings of the jury manifest passion and prejudice. We think not, but believe the jury on all the issues had evidence to support their finding.

W]e find no reversible error in the case, and it will be affirmed.
      @=»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (&wkey;>For other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: RICE, J.

text:
    KINCANNON & GAINES v. INDEPENDENT COTTON OIL CO.
    (No. 5718.)
    (Court of Civil Appeals of Texas. Austin.
    March 21, 1917.
    On Motion for Rehearing, July 2 and Oct. 10, 1917.)
    On Motion for Rehearing.
    1. Damages <@=362(4) — Duty to Minimize Damage.
    It is the duty of the party complaining of breach of contract to minimize his damage as much as possible.
    [Ed. Note. — For other cases, see Damages. Cent. Dig. §§ 128-131.]
    2. Sales <&wkey;418(7) — Duty to Minimize Damage — Injuey TO PROPERTY.
    If buyers, after discovering that stock meal purchased was unfit for feed, could, by reasonable effort, have secured other feed .with which to fatten their cattle, it became their duty to do so, and if they did not do so, but continued to use the poor feed, they could not recover for injury resulting thereafter.
    [Ed. Note. — For other cases, see Sales, Gent. Dig. § 118S.]
    3. Sales <S&wkey;418(7) — Action by Buyer — Measure of Damages — Difference between Contract and Market Price.
    Where buyers, after discovering that stock meal purchased was unfit for feed, could have secured other feed, their measure of damages would be the difference between contract price and the price at which they could have purchased the other feed.
    [Erl. Note. — For other cases, see Sales, Cent. Dig. § 1188.]
    4. Damages <&wkey;62(4) — Duty to Minimize Damage — Reasonable Care.
    An injured person is only required to use reasonable exertion and expense in minimizing his damage, the question in such cases being whether his act was a reasonable one, considering all the circumstances of the case, and this is especially true where notice of the wrong or injury has been brought home to him.
    [Ed. Note. — For other cases, see Damages, Gent. Dig. §§ 128-131.]
    5. Sales <&wkey;38(7) — Buyer’s Right to Rely on Seller’s Representations.
    If purchaser of stock feed believed it to be unfit for use, but did not actually know that it was in that condition, after calling the seller’s attention to the matter, the buyer could rely on seller’s representations that the feed was sound, and will be entitled to recover for the resulting injury to the cattle.
    [Ed. Note. — For other cases, see Sales, Gent. Dig. §§ 74, 75.]
    6. Judgment <&wkey;251(l) — Conformity to Pleading.
    A judgment in a buyer’s action for damages could not allow recovery upon a phase of the case not pleaded.
    [Ed. Note. — For other cases, see Judgment, Gent. Dig. § 437.]
    7. Judgment <&wkey;256(G) — Conformity to Proof.
    A judgment, in a buyer’s action for damages, could not allow recovery for feed buyer could have purchased in place of unsound feed furnished hy seller, which the evidence showed that buyer did not in fact purchase.
    [Ed. Note. — For other cases, see Judgment, Gent. Dig. § 452.]
    8. Sales &wkey;>418(7) — Action by Buyer — Damages Caused by Buyer’s Negligence.
    In action by buyer of stock feed, which caused injury to cattle, injury resulting from buyer’s act in allowing cattle to stand in muddy pens should bo deducted from amount recoverable.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. § 1188.1
    Appeal from District Oourt, McEennan County; Tom L. 'McCullough, Judge.
    Action by Kincannon & Gaines against the Independent Cotton Oil Company. Judgment of $180 for plaintiff, and plaintiff appeals. Reversed, and judgment of $1,156.90 rendered for plaintiff.
    On motion for rehearing, motion granted, former opinion set aside, and1 cause remanded for new trial.
    Davis & Cocke, of Waco, for appellants. Scott & Ross, of Waco, for appellee.
   RICE, J.

During the fall of 1913, appel-lees, who were conducting a cotton seed oil mill at Bruceville, Tex., entered into a contract with appellants whereby they agreed to furnish them a certain amount of hulls and prime cotton seed meal for the purpose of fattening 432 head of cattle for market. And this suit is brought by appellants against said Oil Company, claiming failure on their part to comply with said contract, alleging that they had furnished unsound and inferior cotton seed meal and hulls, whereby said cattle failed to put on as much flesh as they would have done had said contract been complied with, and sought recovery of damages alleged to have been occasioned by such failure. Appellees, after a general denial, replied that appellants had full knowledge of the quality of hulls and meal as furnished for the purpose of fattening said cattle, and before the contract was entered into appellants sampled the meal and fed it to their cattle with a view of determining whether or not it would be satisfactory; that, after the execution of the contract, appellants, with full knowledge of the quality of the meal and the effect it was having upon their cattle, voluntarily continued to use the same. Appellees further allege that if the meal and hulls were unsound or inferior, as claimed by appellants, that they could have procured other meal and hulls from other sources, whereby they could have lessened their damages, hut failed to do so. They also plead that during the time the cattle were being fed there was an unusual spell of wet weather, and the lot in which the cattle were kept had become full of mud and water, and so continued for several weeks, and that if the cattle were damaged it resulted from such condition of the pens.

The case was submitted on special issues, in response to which the court rendered judgment in favor of appellants for the sum of $180, from which judgment this appeal is prosecuted.

While numerous errors have been assigned, it is only necessary, in our judgment, to discuss the sixteenth assignment, which complains of the failure of the court to render judgment in behalf of appellants for the sum of $1,156.90, which they claim was the loss sustained on the 432 head of cattle, at an average of 40 pounds per head, at the market price of $6.70 per hundred weight. The jury-found that appellees had failed to furnish the quality of meal contracted for by them, and in consequence thereof the cattle weighed 40 pounds less at the time of marketing than they would have weighed had the contract been complied with. It is unquestionably true that appellants made out a prima facie case under this finding of the jury, and were entitled to recover for the loss sustained. ■See Houston Cotton Oil Co. v. Trammell, 72 S. W. 244-47; Houk v. Berg, 105 S. W. 1176; Knight & Co. v. Southern Pacific Co., 41 Tex. 406-413. Appellees, however, eon-lend that as the evidence shows and the jury found that appellants had knowledge of the inferior quality of the feed within 30 days after the cattle were placed in the pens, and voluntarily continued to use the same, that they were only entitled to recover the difference in the cost between the feed so furnished and what it would have taken to have obtained proper and requisite feed in lieu thereof.

We think this doctrine would not apply in the instant case, for the reason that it appears from the evidence that upon complaint to appellees as to the inferiority of the meal and hulls, that they represented the same to be sound and good and insisted upon the use of same by appellants; therefore appellants were justified in relying upon their warranty and continuing their use. But, even if we are mistaken in this, still we think the burden was upon appellees to show that appellants, at reasonable expense, could have procured other and sufficient feed upon which to fatten the cattle, and also to show the difference in price of the feed actually furnished and the cost of obtaining other good and satisfactory meal and hulls, and, the evidence and verdict failing to show this with sufficient definiteness, appellees cannot complain. Again, appellees claim to have furnished to the director of the Texas Agricultural Experiment Station a sample of the feed in question, which was analyzed by him, and found to be suitable for feed purposes; it is contended on their part that they were not liable in a suit for damages at the instance of appellants, basing their contention on articles 5891: to 5900 of title 92, vol. 4, of Vernon’s Sayles’ Revised Civil Statutes. Notwithstanding the provisions of these articles, appellees were responsible upon their warranty, and having sold the feed in question, warranting the meal to be sound and of prime quality, cannot now escape liability by reason of their compliance with the statute referred to; for which reason we overrule their cross-assignment complaining of this question.

As the court erred in failing to sustain the sixteenth assignment, if becomes our duty to reverse the case, and here render such judgment as the trial court should have rendered in behalf of appellants, to wit, for the sum of $1,150.80, this being the total amount of loss sustained on 431 head of cattle basing same at 40 pounds each at $6.71 per hundredweight, as found by the jury; and it is so ordered.

Reversed and rendered.

On Motion for Rehearing.

It is insisted in the motion for rehearing that we erred in adoiJting an improper measure of damages in rendering judgment in behalf of appellants, urging that the evidence showed and the jury found that the plaintiffs, within 30 days after they began to feed their cattle, discovered that the cotton seed meal furnished was unsound and was injuring the cattle, and notwithstanding this knowledge continued to use it, for which reason they were not entitled to recover.

The law seems well settled that it is the duty of the party complaining to minimize his damage as much as possible.

If appellants, after discovering that the meal furnished was unfit for use, could, by reasonable effort, have secured other feed with which to fatten the cattle, it became their duty to do so, and the measure of damages in such case would be the difference between the contract price and the price at which they could have purchased the other feed, which in the present case was, as found by the jury, the sum of $1S0.

It is-said in 13 Oye. p. 71, that:

“Where an injured party finds that a wrong has been perpetrated on him, he should use all reasonable means to arrest the loss. He cannot stand idly by and permit the loss to increase, and then hold the wrongdoer liable for tile loss which he might have prevented. Waco Artesian Water Co. v. Cauble, 19 Tex. Civ. App. 417, 47 S. W. 538; Trinity R. R. Co. v. O’Brien, 18 Tex. Civ. App. 690, 46 S. W. 389; Brown v. Death, 17 Tex. Civ. App. 262, 42 S. W. 655, 44 S. W. 42. It is only incumbent upon him, however, to use reasonable exertion and reasonable expense, and the question in such cases is always whether the act was a reasonable one, having regard to all the circumstances of the particular case.”

Again, on page 75 of Cyc., it is said:

“One whose property is endangered or injured by the negligence of another must exercise reasonable care to protect it from further injury; and especially is this rule true where notice of the wrong or injury has been brought home to the party seeking to recover damages, and he has taken no steps to protect himself from further loss. The rule only requires a party to protect himself from the injurious consequences of the wrongful act by the exercise of ordinary effort and care and moderate expense; such rule has no application where the injury could only be prevented by extraordinary effort or cost.”

See, also, H. & T. C. R. W. Co. v. Mitchell, 38 Tex. 85; Brandon v. Mfg. Co., 51 Tex. 128; Womack v. W. U. Tel. Co., 58 Tex. 182, 44 Am. Rep. 614; H. & T. C. v. Richards, 59 Tex. 375; T. M. Ry. Co. v. Julius Herbeck, 60 Tex. 602; Houston, E. & W. T. Ry. Co. v. Adams, 63 Tex. 207; Cooper v. City of Dallas, 83 Tex. 242, 18 S. W. 565, 29 Am. St. Rep. 645; Vogt v. Dorsey, 85 Tex. 90, 19 S. W. 1033; Carhart & Bro. v. Killough, 1 White & W. Civ. Cas. Ct. App. § 112; O’Neil v. Davis, 1 White & W. Civ. Cas. Ct. App. § 417; Stoker v. Wilson, 3 Willson, Civ. Cas. Ct. App. § 10; Mo. Pac. Ry. Co. v. Rushin, 3 Willson, Civ. Cas. Ct. App. § 318; Mo. Pac. Ry. Co. v. Scott, 2 Willson, Civ. Cas. Ct. App. § 325; R. Co. v. Cook, 2 Willson, Civ. Cas. Ct. App. § 661.

Appellants bought the cattle for the purpose of feeding them for market, which fact was known to appellees, and there, was evidence on the part of appellants showing that appellees expressly warranted the feed purchased as being sound and suitable for feeding cattle for market; it therefore became tlieir duty under their warranty to furnish sound meal and hulls for the purpose mentioned. But notwithstanding such warranty, if the facts show that, after beginning to use such feed, appellants discovered that it was not sound, but unfit for use, and was injuring the cattle, and thereafter continued to feed same, whereby the cattle were damaged, they could not recover for any injury resulting after such discovery.

If the jury should believe from the evidence that appellants did not actually know them to be unsound, but merely believed them to be so, and, after calling the attention of appellee to the condition of the meal and hulls, appellee assured them that they were sound, and insisted upon their continuing to use them, then if appellants relied upon such representations, and continued to use them, they, in our judgment, would be entitled to recover whatever injury the cattle suffered by reason thereof.

In this connection it would be well to observe that the evidence shows and the jury found that plaintiffs did not discover the unsound condition of the feed until about a month after they had been using it. Under this phase of the case, plaintiffs were entitled to recover whatever injury, if any, the cattle may have suffered from the use of such improper feed during said period. But no account seems to have been taken of this in the trial below.

The court below gave judgment for plaintiffs for the sum of $180, based upon the theory that appellants, after discovering that the feed was unfit for usé, could have purchased suitable feed, such recovery being the difference between the contract price and the then prevailing market price for such feed. This was error for two reasons1: First, because the petition did not seek to recover upon such phase of the case, and without which no recovery could be had (G. C. & S. F. Ry. Co. v. Cole, 4 Willson, Civ. Cas. Ct. App. § 97; Western Union Tel. Co. v. Lively, 4 Willson, Civ. Cas. Ct. App. § 192); and, second, the proof showed that appellants failed to purchase such other feed, and hence could not recover for something they did not in fact furnish.

We were mistaken in our original opinion in holding that the evidence failed to show that the cattle suffered any loss from standing in wet and muddy pens, but, on the contrary, it appears from the evidence, and the jury found, that the cattle were damaged and injured on this account to the extent of $717.97. In view of another trial, if the proof is the same on this phase of the case, then the issue should be so framed as to take this matter into consideration, allowing proper deductions for such loss.

For the reasons indicated, appellants1’ motion for rehearing is granted, and our former opinion rendering judgment in behalf of appellants is set aside, and the cause remanded for another trial not inconsistent with the views herein expressed.

Reversed and remanded.

Opinion Correcting in Part Opinion on Motion for Rehearing.

We held in our opinion on motion for rehearing^ that plaintiffs could not recover the sum of $180, it being the difference between the contract price of the feed furnished and what other suitable feed could have been bought upon the market, _ on the ground, among' other things, that plaintiffs did not purchase such other feed. After due consideration, we are inclined to believe that such statement was not sound, and therefore desire to retract it, which is accordingly done. However, we see no reason for any change of such opinion in other respects, and overrule appellee’s second, as well as appellant’s, motion for rehearing.

Motions overruled. Opinion corrected in part.
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      <p^>For other cases see same topic and KEY-NUMBBR in all Key-Numbered Digests and Indexes