author: MOURSTJND, J.

text:
    PETTY et al. v. CITY OF SAN ANTONIO.

    (No. 5513.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 24, 1915.
    Rehearing Denied Dec. 22, 1915.)
    1 Navigable Wateks <&wkey;36 — Title to Bed oe Stbeam — Bindings.
    In an action by riparian owners against a •city for injunction, and damages incurred in the abatement of structures alleged to obstruct the flow of the stream, the jury’s finding that the river was of an average width of 30 feet had the same effect as a finding that the river was navigable, so far as the title to riparian lands was concerned.
    [Ed. Note. — Por other cases, see Navigable Waters, Cent. Dig. §§ 180-200; Dec. Dig. <&wkey; 36.]
    2. Navigable Watebs <&wkey;43 — Water Courses — Rights to Bed oe Stream — 1“Pubpe.es-ture.”
    Where riparian owners placed fillings and buildings in the bed of a navigable river, which is owned by the state, they created a purpres-ture, and were liable to judgment restraining them from continuing the trespass and authorizing the removal of the obstructions, whether or not the flow of the river was so obstructed as to cause overflows dangerous to the public.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 104, 256-265; Dec. Dig. •<&wkey;43.
    Por other definitions, see Words and Phrases, First and Second Series, Purpresture.]
    3. Appeal and Error @=1122 — Support oe Judgment Below — Making Findings.
    Where there is evidence to support a finding that will support the judgment below and submission of the issue was not requested, the Court of Appeals must make such finding.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. § 4420; Dec. Dig. <@=1122.]
    4. Navigable Waters <&wkey;43 — Obstruction oe Stream — Abatement—“Depri vatio n. ”
    Where a riparian proprietor filled in and built upon the bed of a stream, so as to constitute a nuisance by creating a danger of overflow through inadequate outlet for high water, such nuisance was open to abatement by the city, whether the river was navigable or not, since preventing the owner from using his property so as to injure others is not a deprivation to him of such property or its use.
    [Ed. Note. — For other cases, see Navigable Waters, Cent. Dig. §§ 104, 256-265; Dee. Dig. ■@=43.
    For other definitions; see Words and Phrases, First and Second Senes, Deprivation.]
    5. Navigable Waters <&wkey;43 — Obstruction oe Stream — Abatement — Right to Damages.
    Where defendant city tore down plaintiff ■riparian owners’ structures in the bed of a stream constituting a dangerous obstruction thereof in time of flood, but did not take the material or destroy it, an emergency existing in the near prospect of a flood justifying the summary action, plaintiffs could not recover damages for the removal of the obstructions, since no compensation can be required when a nuisance is summarily abated in an emergency justifying summary steps, while the regulation of the use of property or the destruction thereof under a proper exercise of the police power is not a taking of - property without making compensation within the Constitution.
    [Ed. Note. — For other cases, see Navigable Waters, Cent.Dig. §§ 104,256-265; Dec.Dig. @=43.]
    6. Trial <@=251 — Refusal oe Instruction.
    Where the case was submitted on special issues, the court did not err in refusing a charge not drawn so as to be applicable to any particular issue, but calling for a general verdict.
    [Ed. Note. — For other cases, see. Trial, Cent. Dig. §§ 587-595; Dee. Dig. @=251.]
    7. Waters and Water Courses @=58 — Obstruction — Right to Abate.
    It is not the law that no relief can be had by the public, against an obstruction to the flow of a river on the ground that it is a nuisance dangerous to life if overflows would occur in the absence of such obstruction, since it might greatly increase the amount of the overflow, and the danger and destruction caused thereby.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 49; Dee. Dig. <@= 58.]
    8. Trial <@=251 — Instruction—Comeormity to Pleadings.
    A charge is properly refused, unless pleadings justify it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. &wkey;251.]
    9. Appeal and Error <@=1062 — Harmless Error — Submission oe Special Issues— Form.
    In an action by riparian owners against a city to enjoin the further, and recover damages for the past, removal of alleged obstructions placed in the bed of a stream, where the jury found that the width of the river was 30 feet on the average, which, so far as fixing the boundaries of the stream was concerned, was equivalent to a finding that it was navigable, any error in the form of questions submitting the issue of navigability was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]
    10. Appeal and Error @=1062 — Harmless Error — Special Issues — Form.
    In an action by riparian proprietors to enjoin a city from removing structures in a bed of a river, where the city made out a case of nuisance whether plaintiffs’ line extended to the center of the stream or only to the water line, any error in the form of questions submitting the issue of the navigability of the stream was harmless error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212^-4218; Dec. Dig. @= 1062.]
    11. Appeal and Error <@=231 — Reservation oe Grounds oe Review — Objection to Instruction.
    In a suit by riparian owners to enjoin a city from removing structures placed in the bed of a river, an objection made to the charge of the court that the definitions of the terms “channel” and “bed” were incorrect was too general ,to predicate error upon.
    [Ed. Note. — For other cases,-see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. <@=
    12. Appeal and Error <&wkey;742 — Assignment oe Error — Sufficiency.
    Where the only proposition under an assignment of error was that a definition should be clear, plain, and accurate, no reason in law being disclosed why appellants’ special charge should have been given, and the court being left to study the definition offered by appellants and that given, and to determine whether appellants’ charge should have been given, the assignment pointed out no error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <&wkey;>742.]

      13. Appeal and Error &wkey;>759 — Assignment op Error — Copying Out oe Order.
    The copying of assignments in the brief out of their regular order is not permissible under the rules of the court of Civil Appeals.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. <&wkey;>759.]
    14. Appeal and Eeeoe <&wkey;>719 — Assignments oe Eeeoe — Necessity.
    Appellants desirous to contend that the evidence fails to support an affirmative answer to an issue, or that there was no evidence justifying such issue’s submission, must raise such questions by proper assignments.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dee. Dig. 4&wkey;719.]
    15. Trial &wkey;>352 — Special Issues — Submission — Form.
    In a suit by riparian proprietors to enjoin a city from removing structures in the bed of a river, where the evidence was sufficient to support a finding that the true bed or channel extended further than a certain survey line of 1S91, but the city only sought to open the river to such line, it was proper for the court in submitting a special issue to mention such survey line to identify the disputed strip of land.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 840-842, 844, 845; Dec. Dig. &wkey;352.]
    16. Appeal and Eeeoe >&wkey;1070 — Harmless Eeeoe — 'Verdict.
    In a suit by riparian proprietors for damages and to enjoin a city from further tearing down structures in the bed of a river, where plaintiffs were not entitled to recover the value of the buildings torn down, error by the jury in estimating such value was harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4231-4233; Dec. Dig. <&wkey; 1070.]
    17. Appeal and Eeeoe &wkey;^73G. — Assignment oe Eeeoe — Multifaei'ousness.
    Multifarious assignments of error will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. <&wkey; 736.]
    18. Appeal and Eeeoe &wkey;>742 — Assignments oe Eeeoe — Support by Abstract Proposition.
    Assignments of error followed only by an abstract proposition of law will not be considered.
    [Ed. Note. — For .other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742.]
    19. Appeal and Eeroe @=>742 — Assignments oe Eeeoe — Specification of Eeeors.
    Assignments of error, relating to evidence, merely complaining of the introduction of evidence set out in a certain bill of exceptions, being following by an abstract proposition that, if any one of a series of objections is tenable, the evidence should be rejected, the statements showing that many objections were made in each instance, will not be considered, since the court cannot be expected to take up each reason given in excepting to evidence and dispose of the same, unless propositions are urged showing a particular rule of law relied on to show error.
    [Ed. Note — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dee. Dig. <&wkey;742.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit by Y. A. Petty and others against the City of San Antonio. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    Jas. D. Crenshaw and Henry Terrell, both of San Antonio, for appellants. Geo. R. Gillette and Robt. J. McMillan, both of San Antonio, for appellee.

      Application for writ of error pending in Supreme Court.

   MOURSTJND, J.

On October 12, 1914, appellants presented their petition, in which they alleged that they were the owners of a tract of land- located within the corporate limits of the'city of San Antonio, fronting on the 'San Antonio river its entire length between Houston and Travis streets, and that there were valuable improvements on said land; that their title extended to the thread of the center of said river, and that the improvements were erected with the authority or consent of appellee more than 10 years prior to October 10, 1914, and had never been declared dangerous to life or health by any court of competent jurisdiction; that defendant, the city of San Antonio, by and through its agents and employes, on Sunday, October 11, 1914, without fight, authority, or permission,’ entered upon said land, and tore down, removed, and destroyed parts of said improvements, and again on October 12, 1914, entered thereon and are continuing to tear down, remove, and destroy said improvements, to plaintiffs’ damage in the sum of $10,000; that there was not, nor is, any immediate danger or calamity threatening the destruction of life, health, or property pending which necessitated or required the immediate tearing down, removal, and destruction of said improvements. The plaintiffs prayed for a temporary injunction to restrain defendant and its employés from entering upon said land and injuring said improvements; that at the final trial said writ be made perpetual and defendant be restrained from interfering with or molesting plaintiffs in restoring said improvements or placing new ones on said land, and that they have judgment for their damages. On October 12, 1914, the temporary injunction was granted.

On October 31, 1914, the city filed its original answer in which it denied all the allegations of the petition except that it removed from the land between Houston and Travis streets certain sheds, platforms, and other obtsructions to the flow of the river. Its contention, briefly stated, was that the land upon which said improvements had been placed was a part of the river channel and bed, and that said river was a public waterway and susceptible of navigation, and, therefore, its channel was public domain; that-plaintiffs, and those under whom they claim, had encroached upon such channel, thereby interfering with the flow of the river, narrowing the channel in such manner as to create a public nuisance. It alleged that an emergency existed justifying the immediate tearing down of said improvements, and that such emergency was shown by the fact that less than two weeks thereafter a great and disastrous flood came down the river, inundating the streets, backing up into the yards and houses, and that the earth, filling, and obstructions placed in said river channel by plaintiffs and those under whom they claim, constituted a contributing cause to such overflow. The city alleged further that on April 6, 1891, it passed a resolution adopting á certain river survey shown by map 1, section 8, extending from Convent street to Houston street bridge, being a uniform width of 70 feet, where the obstructions were torn down, which resolution directed the mayor to take the necessary steps to preserve the width of 70 feet between the points named. It was further alleged that it was upon a portion of said 70-foot channel as shown by such survey that the city’s employes entered and removed improvements, and that the bed or channel of the river extended even further east into the land held by plaintiffs than was indicated by said survey. The city pleaded an ordinance passed on May 26, 1866, prohibiting the making or erection of any obstructions in the river within the city limits. It also pleaded that at the time the obstructions were placed upon the land claimed by plaintiffs an ordinance was in effect making it unlawful to plant trees or shrubbery, to build walls, dykes, or levees or in any manner encroach upon the margin of the river, without obtaining a permit from the city engineer. The city alleged further that the river runs through the most densely populated part of the city; that it is subject to periodical rises and overflows of such frequent occurrence that they may be at any time anticipated; that at such times it is necessary for it to have the full channel width to carry off the water, and that plaintiff and those under whom they claim and others had encroached upon the river and narrowed the channel until at certain points it is insufficient to hold the water in time of floods; that the buildings torn down and the filling of earth, ashes, etc., which remains on the land claimed by plaintiffs constituted one of the direct proximate contributing causes of the overflow of the river in the past at points above Travis street. The city then set out fully the danger to life and the injuries occasioned to property and health by reason of such overflows. The city also pleaded an ordinance adopted on October 5, 1914, condemning the property claimed by plaintiffs as a public nuisance and ordering its removal within 3 days, which ordinance described the premises claimed to be a part of the river bed, and provided for the removal of the obstructions by the river commissioner if they were not removed by plaintiffs, and it was alleged that plaintiffs were served with notice of the passage of such ordinance. The city alleged further that it had been deepening and restoring the channel of the river, and that it intends to require all parties who have encroached thereon to remove such encroachments. It alleged further that without regard to any question of title the property could only be used in a manner compatible with the public safety; that in three instances within the past 12 months the river has overflowed above Travis street;that the entire river channel is necessary at the point in question to accommodate the water, and that the obstructions upon said property were a nuisance and a menace to public health, and if allowed to remain will cause defendant and its citizens a great and irreparable injury for which they can have no adequate remedy at law.

It prayed that the temporary restraining order be dissolved; that plaintiffs’ prayer be not granted; that it be granted a perpetual injunction restraining plaintiffs from again encroaching upon said river and from rebuilding any structures or improvements upon any portion of said property which would impede the flow of the river, and from interfering with defendant in removing such obstructions as still exist thereon.

By supplemental petition plaintiffs joined issue with defendants on all allegations contained in the answer with the exception that they admitted that the river commissioner and other employes removed improvements from land located between the red lines depicted on the map attached to defendant’s pleadings, and in this connection plaintiffs alleged that such land had been in the peaceable and adverse possession of themselves and those under whom they claimed for more than 20 years. Plaintiffs also alleged that defendant’s employes went upon other property of plaintiffs than that depicted as situated betw'een the red lines on the map, and carried away houses, sheds, and platforms, and damaged other property, all to their damage in the sum of $3,250. Plaintiffs pleaded the statute of limitations of 5 years, and alleged that the land was conveyed by the Spanish government in 1793 to Mathias del Rio ; that title passed through mesne conveyances to plaintiffs, and that in said conveyances the land was described as bounded on the west by the San Antonio river; that plaintiffs conveyed to defendant the premises now constituting Travis street between the river and St. Mary’s street, and described same as bounded on the west by the meanders of the river; that therefore defendant knew that said land was bounded by the river, and is estopped to deny that such is the case. They denied that the city council had authority to pass the ordinances pleaded, and alleged that they were contrary to the city charter, the laws and Constitution of the state and of the United States.

The city by supplemental answer joined issue upon all the allegations contained in the supplemental petition, and again pleaded that the premises from which the improvements had been removed was public domain, and therefore limitation would not apply. Other pleadings were filed, but the statement made is sufficient to an understanding of tlie issues to be discussed. Tbe court overruled the demurrers and special exceptions of both parties.

The case was submitted upon special issues in answer to which the jury found: (1) That the portion of the shed and buildings which was removed by the city, and the filling of earth, ashes, rubbish, piling, etc., beneath same interfered with the natural flow of the San Antonio river in times of high water in such a manner as to constitute one of the proximate causes of the overflow of the river above Travis street. (2) That the filling of earth, ashes, piling, rubbish, buildings, etc., which still remains west of the river survey line of 1891, constitute such an obstruction to the natural flow of the river in time of high water as will constitute one of the proximate causes of the river to overflow above Travis street in the future. (3) That the true bed or channel of the San Antonio river south of Travis street extended as far as the east line of the river survey of 1891 at the time said filling and buildings were placed there, or within a reasonable time theretofore. (4) That the San Antonio river, within the city of San Antonio and immediately south of Travis street, is navigable, either for commercial or other useful purposes. (5) That the San Antonio river, by a reasonable expenditure, commensurate with the results to be obtained, can be made navigable for commercial or other useful purposes within the city limits at and below Travis street. (6) That there was an emergency or imminent danger of immediate destruction to property, or loss of life, from the overflow from the San Antonio river at the time defendant tore down the shed and buildings. (7) That the reasonable market value of the shed, buildings, etc., which were tom down by the defendant, at the time they were so torn down was $300. (8) That the water in the San Antonio river, within the city of San Antonio and immediately south of Travis street, is of an average width of 30 feet.

Upon such verdict the court entered judgment denying plaintiffs the perpetual injunction and damages prayed for in their petition and dissolving the temporary injunction; enjoining plaintiffs from maintaining upon the property described in the decree, which is all the property described in the ordinance pleaded, except a portion excepted by agreement as not involved in this suit, the buildings situated thereon, or the filling of earth, rubbish, ashes, piling or other material which had been placed thereon; enjoining them from rebuilding the structures, which had been tom away or which might be torn away under this decree or from again placing any filling or piling which may be removed under the decree; and enjoining them from interfering with the removal of such structures and filling as now remains on such premises.

The first assignment of error is as follows:

“The court erred in entering judgment herein because: (1) Said judgment gives no compensation to these plaintiffs for their property and buildings destroyed by defendant.
(2) Said judgment enjoins and restrains these plaintiffs from any and all lawful uses of their said property.
(3) Said judgment deprives these plaintiffs of the use of their property without adequate compensation being made therefor.”

The three propositions submitted thereunder are abstract propositions of law, based upon the constitutional provision, to the effect that no person’s property shall be taken, damaged, or destroyed for, or applied to public use without adequate compensation being made, unless by consent of such person. The statement contains copies of several deeds, portions of the city’s pleadings introduced by plaintiffs, testimony of E. F. Collins that he put up the buildings in controversy about 1911, testimony of V. A. Petty that plaintiffs have been in possession of the property for a little over 7 years, and copy of the judgment of the court.

As it is asserted in the assignment that plaintiffs’ property and the use thereof has been taken without compensation, we assume that appellants contend that, notwithstanding the findings of the jury, it should be held, first, that plaintiffs’ property, or the use thereof, has been taken from them, and, second, that this has been done without making compensation, to which, under the law, they are entitled. The evidence set out in the statement shows that plaintiffs’ premises are bounded on one side by the river, but whether they own to the center of the channel or to the water’s edge is not disclosed by the muniments of title. The original grant from the sovereignty was not introduced in evidence, and it does not appear that the survey, of which the land described in plaintiffs’ muniments of title is a portion, was granted or surveyed prior to the passage of the law now known as article 5338, R. S. 1911. Plaintiffs failed to show title to the middle of the channel. The jury found that the water in the river was of an average width of 30 feet, and it seems that such finding must be given the same effect as if the river was navigable in fact in so far as the title to lands fronting thereon is concerned. City of Austin v. Hall, 93 Tex. 591, 57 S. W. 563. The court was therefore authorized to hold, for the purposes connected with the trial of this case, that the title to the bed of the river was in the state. As the jury found that, at the time the fillings and buildings were placed on the premises described in the judgment, or within a reasonable time theretofore, the true bed of the river extended over said premises, plaintiffs had created a purpresture by filling in and erecting buildings upon premises owned by the state, and cannot object to a judgment which restrains them from continuing such trespass and authorizes the removal of the filling and structures Illegally placed thereon. Farnham on Waters and Water Rights, vol. 1, § 86, p. 410; also section 75, p. 333. See, also, note to Revell v. People, 69 Am. St. Rep. 271.

The question of navigability was made an issue in the case, not upon the theory that the filling and structures constituted obstructions to navigation, but for the purpose of fixing the plaintiffs’ property line. If that property line goes only to the water line, the placing of the filling and structures upon the bed of the river constituted a purpresture, and the city was entitled to remove or have same removed whether or not said filling and structures constituted such obstructions to the flow of the river as to be the proximate cause 'of overflows dangerous to the life and health of the public. But in this case the jury, in answer to the first two issues, found that such filling and structures constituted an obstruction which was one of proximate causes of overflows of the river. The evidence amply supports a finding that such overflows constituted a menace to the public health, inflicted great damage to property, and endangered the lives of people. As this issue was not requested to be submitted, we must make the finding so as to support the judgment of the court, there being evidence to support it. The evidence also warrants a finding, if such a finding be necessary, that at the time the obstructions were placed in the river and at the time they were ordered to be removed the probability of overflows above Travis street was so great that plaintiffs would reasonably be required to anticipate such occurrences. It further appears that the ordinances relating to obstructing the river and encroaching upon its margin, pleaded by the city, were in effect at the time the obstructions were placed in the bed of the river. This case falls within that class of cases in which obstructions are sought to be removed which have been made in a river in such manner and to such extent as to constitute a nuisance. In such cases it is entirely immaterial whether the river is navigable or not. A riparian owner has no right to obstruct the flow of the stream so that it overflows its banks and becomes a menace to the public health, damages property, and endangers life, and to prevent him from using his property in such a manner as to injure other riparian owners of the public, is not depriving him of his property, nor of the use thereof. In this case the judgment of the court does not deprive plaintiffs of any land or riparian rights, but decrees that they cannot be permitted to hold advantages or benefits obtained by them by filling in and obstructing a river in such a way as to create a nuisance. When the filling and obstructions are removed, as decreed by the court, plaintiffs will still have their land and their riparian rights.

We do not think plaintiffs were entitled to recover the damages suffered by them by reason of the removal of the structures found by the jury to have constituted an obstruction proximately causing overflows.' It does not appear that the material was taken by the city or destroyed, but that the buildings were torn down. This was done pursuant to an ordinance which required plaintiffs to remove such obstructions, and provided that, if they failed to do so, the city authorities should effect the removal thereof. The jury found that an emergency or imminent danger of overflow and its attendant damages existed at the time the buildings were removed. It is clear that if a trespass was committed no liability would exist for such removal of obstructions, and it is also the law that no compensation can be required when a nuisance is summarily abated, the emergency justifying such summary steps being fully shown. Under the judgment plaintiffs would have been required to remove or permit the removal thereof, and, it having been shown that an emergency existed justifying the summary action, plaintiffs could not recover damages occasioned by the removal thereof before the case was tried, and could not recover the value of the structures. The regulation of the use of property or the destruction thereof under a proper exercise of the police power is not a taking of property without making compensation within the meaning of the Constitution. H. & T. C. Ry. Co. v. Dallas, 98 Tex. 396, 84 S. W. 648, 70 L. R. A. 850; Keller v. Corpus Christi, 50 Tex. 614, 32 Am. Rep. 613; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Baumgartner v. Hasty, 100 Ind. 575, 50 Am. Rep. 830 ; Dillon on Municipal Corporations (5th Ed.) § 301, p. 553, also § 687, p. 1042; Farnham on Waters and Water Rights, vol. 1, § 76a, p. 355.

The first assignment is overruled.

The court did not err in refusing to give charge No. 3 asked by plaintiffs. The case was submitted on special issues, and this charge was not drawn so as to be applicable to any particular issue. In addition, it stated an erroneous proposition of law, for it is not the law that no relief can be had against an obstruction to the flow of the river if overflows would have occurred had such obstructions not existed. Such obstructions might greatly increase the amount of the overflow, and the danger and destruction caused thereby, and yet according to appellants’ theory no remedy would exist. The second assignment is overruled.

The third assignment is overruled. Aside from the fact that there were no pleadings which would have justified the submission of the charge requested, such charge was not properly drawn, for it was not made to relate to any special issue submitted, but called for a general verdict. In addition, it stated an erroneous proposition of law.

No assignment of error is presented which requires us to determine whether the evidence warrants a finding that the river is in fact navigable, hut assignments 4, 10, 11, 15, and 16 are directed at the form of the questions submitting such issue. It is useless to discuss these assignments, for if it be conceded that errors were committed as alleged, such errors are not material for two reasons: First, because the finding that the water of the river is of an average width of SO feet must be given the same effect as a finding that it is navigable in fact in so far as fixing the boundaries is concerned; and, second, because the city made out a case of nuisance which applies, regardless of whether plaintiffs’ line extended to the center of the stream or only to the water line. The assignments are therefore overruled.

The fifth and sixth assignments are submitted together. By the fifth assignment complaint is made because the court refused to give plaintiffs’ special charge No. 1, defining what is the “channel or bed” of a stream. The sixth complains of the definition given by the court of the word “channel.” It appears that the only objection made to the charge of the court was that the definition given was incorrect. Such an objection is too general to predicate error upon, and the sixth assignment is therefore without merit. The only proposition submitted under the fifth assignment is that a definition should be clear, plain, and accurate. No reason in law is disclosed why plaintiffs’ special charge should be given, but we are left to study the definition offered by plaintiffs and that given by the court, and determine whether plaintiffs’ charge should have been given. It is apparent that, as briefed, the assignment points out no error, and must be overruled.

By the seventh assignment it is again virtually contended that unless plaintiffs’ obstruction of the river was the sole cause of overflows, no relief could be had against the same. This contention has been heretofore disposed of, adversely to appellants, in considering the second assignment of error.

The eighth, ninth, thirteenth, and fourteenth assignments of error are grouped. The copying of assignments in the brief out of their regular order is not permissible under the rules. The thirteenth and fourteenth assignments point out no error alleged to have been committed by the court. It is impossible to tell from reading them what ruling is complained of. The propositions under these assignments are abstract propositions of law, but considered in connection with the assignments 8 and 9 they raise two contentions: First, that the second issue submitted is remote and speculative. The contention is without merit. The issue was properly drawn, and if appellants desired to contend that the evidence fails to support an affirmative answer thereto, or that there was no evidence justifying the submission of the issue, such questions should have been raised by proper assignments of error. The second contention is that the court by mentioning the survey line of 1891 recognized such line as legally established. It is apparent that the court only mentioned such line for the purpose of identifying the line of the land alleged by the city to have been a part of the bed or channel of the stream. The evidence was sufficient to support a finding that the true bed or channel extended further east than said line, but as the city only sought to open the river to said line, it was proper for the court to ask the question with reference thereto. No legal effect was given to said survey; it was merely used like any other survey, for the purpose of identifying the disputed strip of land. The assignments are overuled.

The twelfth assignment is without merit. The answer to question 2 is not remote or speculative. If it was the purpose to contend there was no evidence to support the answer, the assignment should have been drawn so as to raise that issue.

There is no merit in assignments of error 17 and 19, and they are overruled.

By the eighteenth assignment it is contended that the answer to question No. 7 is contrary to the evidence. As appellants are not entitled to recover the value of the buildings torn down, it is immaterial whether or not the jury correctly estimated such value.

The remaining assignments of error relate to the overruling of the general demurrer to the city’s pleadings, the overruling of many special exceptions and objections to the admission of evidence. We consider the assignment relating to the overruling of the general demurrer, and overrule the same. The other assignments will not be considered, for the following reasons: Those relating to special exceptions are multifarious, and only followed by an abstract proposition of law. Those relating to evidence merely complain of the introduction of evidence set out in a certain bill of exceptions, and are followed by an abstract proposition to the effect that if any one of a series of objections is tenable the evidence should be rejected. The statements show that many objections were made in each instance. The court cannot be expected to take up each reason given in excepting to pleadings and each objection to evidence and dispose of the same, unless propositions are urged showing the particular rule of law which is relied upon to show that the court erred in overruling a certain objection. We will say, however, that these' assignments relate to matters, which, in our opinion, would not be sufficient to justify a reversal, If error was committed in the respects pointed out.

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

      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WALTHALL, J. HIGGINS, J.

license: Public Domain

text:
    TALLEY v. BAILEY.
    (No. 508.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 16, 1915.)
    1. Trial <&wkey;244 — Instruction Emphasizing Issue.
    In a suit to determine a boundary line tried under stipulatioa that the only issue was whether an agreed line had been established between the parties’ predecessors, where plaintiff’s evidence tended to show that such an agreement had been made, but defendant’s tended to show that the erection of a fence by the predecessors had been merely to establish some boundary for blocking purposes and had been without intention1 permanently to locate the boundary, and the court charged'generally as to what was necessary to constitute an agreement, while a special charge made the agreement have reference to the specific point of difference, such specific charge was not erroneous as giving undue prominence to the issue of the agreement, in view of the difference between plaintiff’s and defendant’s evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581; Dec. Dig. &wkey;244.]
    2. Appeal and Error <&wkey;1064 — Harmless Error — Instruction.
    In a suit to determine a boundary, error of the court, after charging generally as to what was necessary to constitute an agreement, in specifically making the “agreement” have reference to the concrete point of difference, in the evidence whether the agreed boundary line between the parties’ predecessors had been fixed temporarily or permanently, thus unduly emphasizing the issue, was not such error as amounted to such a denial of plaintiff’s right as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment, thus justifying reversal under Rule" 62a of the Courts of Civil Appeals (149 S. W. x).
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§. 4219, 4221-4224; Dec. Dig. i&wkey;>1064.]
    3. Evidence <&wkey;-274 — Owner’s Declaration as to Boundary.
    In a suit to determine a boundary, testimony of plaintiff’s predecessor in title that, when he sold to plaintiff’s grantor, the fence, which the plaintiff claimed was the agreed boundary, was pointed out by the witness as the boundary line between his and defendant’s land, which declaration was made in the absence of defendant and his predecessor in title, was inadmissible.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig.' §§ 1121-1134; Dec. Dig. &wkey;274J
    4. Evidence <&wkey;114^-ExcLusi0N by Agreement.
    In a suit to determine a boundary, where if was agreed that the only issue was whether the parties’ predecessors had made an agreement as to the boundary line, the exclusion of evidence that plaintiff’s predecessor, when he sold to plaintiff’s grantor, pointed out the fence on the line contended for by plaintiff as the boundary, was proper.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 125-132; Dec. Dig. &wkey;114.]
    Appeal from District Court, Reagan County ; J. W. Timmins, Judge.
    Suit by J. A. Talley against A. E. Bailey. .Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Blanks, Collins & Jackson, of San Angelo, for appellant. Wright & Harris, of San Angelo, for appellee.

      Rehearing denied January 6, 1916.

   WALTHALL, J.

This is a boundary line suit brought by appellant against appellee, in the form of trespass to try title, and involves the question as to the boundary line between section 6, Gulf, Colorado & Santa Fé Railway Company’s survey and section 1209, D. & S. E. Railway Company’s survey in Reagan county, Tex. The cause was tried under a stipulation to the effect that each party to the suit had title to his respective section of land, and that the only issue of fact for determination was whether or not an agreed boundary line as contended for by appellant had been established between said two surveys, and the only issue of law, whether or not such agreement, if any, was binding upon appellee. The line contended for by appellee was conceded by appellant to be correct upon the ground, unless the line as contended for by appellant had been agreed upon as the boundary line between prior owners of said surveys and such agreement was binding upon the appellee. The cause was submitted to a jury, which returned a verdict for appellee, upon which the court rendered judgment.

Appellant’s first assignment of error is directed to a special charge given.

The court prepared and submitted to counsel the following general charge:

“By virtue of the agreement between the parties to this suit, there is but one issue for your determination, and that is: Did Y?. H. Funk and G. F. Banowsky, while the owners of section 6, Gulf, Colorado & Santa Fé Railway Company and section 1209, D. & S. E. Railway Company, respectively, agree upon the boundary line between said surveys, as alleged in plaintiff’s petition? If you find from the evidence that while the said W. H. Funk was the owner and in possession of survey 6, Gulf, Colorado & Santa Fé Railway Company and the said G. F. Banowsky was the owner and in possession of section 1209, D. & S. E. Railway Company, that they agreed upon a boundary line between said surveys as alleged in plaintiff’s petition, and you further find that, m pursuance of such agreement, if any you find was made, they erected and maintained their fence thereon, and that the fence was on said line, and the plaintiff or those under whom he claims were in possession of the lands on the east side thereof at the time defendant bought his land, then you will find for the plaintiff. To constitute an agreement, the minds of the parties must meet and there must be a mutual understanding. If you find from the evidence that, in constructing the fence between their respective possessions, the said Funk or Banowsky did not intend thereby to fix or locate the boundary line between them, or that said fence was built for temporary purposes, or until the true line could be ascertained, then I charge you that you should find for the defendant..
“If you find that a valid agreement was made between the said Funk and Banowsky as herein-above charged, and that such agreement was acted upon by the mutual construction of a fence on the line agreed upon, and that said fence was being maintained on the line at the time the defendant A. E. Bailey bought his land, then I charge you that said fence line, if any, was notice to the said A. E. Bailey of all rights claimed by the plaintiff and those under -whom he claims on the east side thereof, and that it is not necessary for the plaintiff to show further notice; I further charge you that, if you find an agreement was made between the said Funk and Banowsky as charged in the first paragraph hereof, such agreement would be binding upon them and their assigns whether the line agreed upon between them, if any, was correct or not, and the true location of the correct line would not be material.”

Appellee presented to the court the following special charge, which was given:

“You are charged that, in order to constitute an agTeed boundary line between the owners of adjacent lands, the minds of both parties must meet as to the agreement, and in this case, if you believe from a prepondei’ance of the evidence that W. H. Funk and 6. F. Banowsky agreed that they would accept the line when they built the fence in the year 1905, as a permanent boundary between the surveys Nos. 1209, and 6, then you will find for the plaintiff. But if you find that said parties did not agree that said line upon which said fence was built was to be the permanent boundary line between said surveys, or that said fence was agreed to be built and maintained only until the true boundary line was discovered, then you will find for the defendant. And in this connection you are charged that the minds of both parties to a contract must meet and agree to the terms of the alleged contract. Therefore you are charged that both W. H. Funk and G. F. Ban-owsky must have agreed to establish a boundary line permanent in its nature, before plaintiff can recover in this case.”

Appellant’s first four propositions under this assignment are to the effect that, where the general charge of the court fully presents an issue to the jury, it is error to unduly emphasize the issue, and thereby give undue prominence to it by a special charge to the exclusion of other issues. That having clearly charged the jury that, if “the said Funk and Banowsky did not intend thereby (meaning by the construction of the fence) to fix or locate the boundary line between them, or that said fence was built for temporary purposes, and until a true line could be ascertained,” the jury should find for defendant, it was error to again specially reiterate the same proposition. That the special charge, in view of the general charge given, puts too much emphasis on and gives undue prominence to the word “permanent.” It is further insisted that the special charge is affirmatively wrong in substance, in that if the line was agreed upon as a boundary line, and a fence built thereon by the action of the both parties, said line became “permanent” as a matter of law, and it was not necessary that the parties affirmatively agree that it was permanent in order to make it so. The fifth proposition under the assignment is not germane to the assignment and cannot be considered.

The evidence in this ease is too lengthy to quote in this opinion, and we refer to it in considering this assignment only for the purpose of disclosing the exact point at issue. In 1903 and prior to any of the facts pleaded in this case, W. H. Funk owned section No. 6, and G. F. Banowsky owned section No. 1209. The boundary line between these two sections was in dispute between the respective owners. At that time there was a fence on the ground between the surveys about 100 varas west of the boundary now claimed by appellant. Appellant’s contention is that while Funk and Banowsky were still the owners and in possession of said respective surveys, for the purpose of settling all differences and misunderstandings between them as to the correct and proper location of said boundary line between said two surveys, Funk and Banowsky agreed upon the line contended for by him in his petition as the west boundary line of section 6 and the east boundary line of section 1209, and that they thereupon, in furtherance of said agreement, removed the fence and established a boundary line fence between said two sections upon said location. That -subsequent to the settlement of said boundary line, Banowsky sold and delivered the title and possession of said survey 1209 to appellee, Bailey, who had notice of said agreement and the location of said line; and that Funk sold section 6 to Wilkie, and Wilkie sold to appellant; that thereafter Bailey constructed a parallel line of fence on the east side and some 250 feet east of the alleged agreed line on a survey made by 'H. M. Garden. The contention made by appellee is that when his predecessor, Ban-owsky, acquired section 1209, there was an old fence that separated the two properties. Soon after Banowsky bought section 1209, Garden ran a line to locate the correct boundary line. The Garden line was some 250 yards eagt of the old fence line. John Gardner, who owned some land north of 1209, spoke of some old rock corners between the old fence and the Garden line; that while Banowsky did agree with Funk to remove the old fence line and place it on the land at the rock corners and between where the old fence was and the line run by Garden, Banowsky never did agree with Funk to move it there as the permanent boundary line, but that it was put there for the purpose of blocking their respective pastures, as Banowsky owned seven or eight sections of land and Funk owned nine or ten sections, and that both parties knew that the old fence line was too far west and on Banowsky’s land, and Funk was not willing to move it to the Garden line; that nothing was said at the time the agreement was made, or when the fence was moved, that it was to be a permanent line between the surveys; that when he bought of Banowsky he wasi not told that the fence built by Banowsky and Funk was the agreed boundary line between the surveys. The only point of difference developed by the evidence between the two contentions is whether the line agreed upon between Banowsky and Funk on which they would and did put the division fence was to be an agreed boundary line between the two properties, or whether it was to serve as a blocking line without reference to its permanency or its being the true or correct line. The general charge of the court instructed the jury as to what was necessary to constitute “an agreement,” while the special charge objected to made the agreement have reference to the concrete point of difference, “agreed boundary line between the owners of adjacent lands.”"

The point of difference in the contentions between appellant and appellee made by the evidence, we think, permitted a more specific statement of the issues than was made in the general charge, and we do not think that by giving the special charge undue prominence was given the issue.

But if the giving of the special charge was repetition of the main charge, it would not be such error as amounted to such a denial of the rights of appellant as wasi reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the case, and on account thereof require or justify a reversal of the case under Rule 62a (149 S. W. x). Englefield v. International & G. N. Ry. Co., 159 S. W. 1033.

Appellant’s second assignment and the proposition thereunder is to the effect that the verdict of the jury is contrary to the weight of the evidence and is without evidence to support it. A review of the evidence discloses that it is not without evidence. Banowsky’s testimony is to the effect that he made no agreement with Funk that the line on which they put the fence should be the boundary line except for blocking purpose, and the fact that the old fence line was practically admitted to be not on the correct division line between the two properties, and that both Funk and Banowsky each had other sections adjoining the two in controversy more or less effected by the old fence line, possibly suggested to the jury that the line adopted by them was a temporary rather than permanent boundary line. Funk’s evidence is to the effect that it was not understood between him and Banowsky that the place they put the fence was temporary, and that nothing was said about the fence being built for the purpose of blocking their lands, yet there is no statement in his evidence to the effect that he and Banowsky agreed that the line on which they built the fence should be the division line between the two properties. They simply agreed to move the fence from the old fence line and to put it where they did. We think the verdict is not without evidence to support it.

The third and fourth assignments suggest error in the exclusion of the offered testimony of Funk and Talley that when he (Funk) sold to Wilkie, and when Wilkie sold to Talley, the fence was pointed out by the vendor as the boundary line between the two surveys.

Appellant refers us to no ease sustaining his contention, and we have found none. In this suit between appellant, Talley, and Bailey, it seems to us that declarations by Funk and Wilkie, the vendors, as to the boundary line, in the absence of Banowsky and Bailey, would not be admissible. Again, the agreement between appellant and appel-lee that the only issue of fact for determination was as to whether Funk and Banowsky had made an agreement as to the boundary line would properly exclude the offered evidence. The issue made by the agreement would not involve the question as to the true boundary line, but the only issue tendered under the agreement was: Did Funk and Banowsky agree that the fence pointed out was the boundary?

There was no error in excluding the evidence.

The case is affirmed.

HIGGINS, J.

(concurring). I am of opinion the special charge was an unnecessary repetition of the general charge and gave undue prominence to defendant’s theory of the case, and should not have been given. But, in view of Rule 62a, I am not prepared to hold that it constitutes reversible error, and therefore concur in the affirmance of the case.
      ®u»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: WALTHALL, J.

text:
    SHIELDS et al. v. PERRINE et al.
    (No. 490.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 2, 1915.
    On Rehearing, Jan. 6, 1916.)
    1. Evidence &wkey;>460 — Parol Evidence Rude —Admissibility.
    Plaintiffs’ mother died seised of the east one-half of a survey of land. During their minority their father, who had a life estate in one-third of such land, applied to the probate court for an order to sell their land. The original report described the land as being the east half of survey No. 1, but the clerk, in recording it, substituted “west” instead of “east.” The order of confirmation followed the error. The inventory and appraisement in the guardianship showed that the land of the infants was the east half of survey No. 7. Held, that parol evidence was admissible to show that there was only one survey of the name specified, and that it was the only parcel of land owned by the plaintiffs during infancy; the record in such case showing on its face an ambiguity.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2i 15-2128; Dec. Dig. &wkey;460.]
    2. Trespass to Try Title <&wkey;40 — Actions— Evidence.
    Where, in trespass to try title, both parties went back to a common grantor, defendant asserting that plaintiffs’ title had been divested by sale during their minority, while under guardianship, evidence of the minutes of the probate court in the guardianship proceedings, approving and confirming the sale, as well as the deed of the guardian, are admissible.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 55-61; Dec. Dig. &wkey;> 40.]
    On Rehearing.
    3. Trial <&wkey;399 — Conclusions oe Law — Errors.
    Where the judgment was proper and the conclusions of law were simply comments on the probative force of the facts found, the judgment will not be interfered with on account of errors in the conclusions.
    [Ed. Note. — For other cases, see Trial, Cent Dig. § 948; Dec. Dig. &wkey;399.]
    Appeal from District Court, Jeff Davis County; W. C. Douglas, Judge.

      Trespass to try title by Owen B. Shields and others against Thos. L. I’errine and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    J. R. Hill, of Ft. Davis, for appellants. J. A. Gillett, of El Paso, for appellees.

      Application for writ of error pending in Supreme Court.

   WALTHALL, J.

This was an action of trespass to try title, which was brought by the appellants, Owen B. Shields, John P. Shields, Mamie J. Robinson (née Shields) joined by her husband, pro forma, G. 0. Robinson, against Thos. L. Perrine, and W. E. Berry, appellees, in which appellants seek to recover of appellees the east 80 acres of a 160-acre tract of land in Jeff Davis county, patented to John B. Shields, by patent No. 365, vol. 10, and described by metes and bounds. The appellees pleaded not guilty and the statutes of limitation. The case was tried without a jury. The trial judge made and filed the following as his conclusions of fact, which we adopt as our own:

“Findings of Fact.

“(1) On September 1, 1885, Susan Shields, the wife of John B. Shields, acquired the title, as her separate property, to the east one-half of survey No. 1, known as the John B. Shields pre-emption in Jeff Davis county (being the land involved in this suit) by regular chain of title from the sovereignty of the soil.
“(2) On September 17, 1886, the said Susan Shields died intestate. She left surviving her, her husband and four minor children, one of said children having died shortly thereafter, leaving the plaintiffs as her only surviving children.
“(3) By deed dated November 2, 1891, John B. Shields, the surviving husband, conveyed to George H. Perrine an undivided one-third interest in and to the east half of said survey No. 1, during the life of the grantor (being the interest acquired by said Shields through inheritance from his wife’s estate).
“(4) George H. Perrine went into immediate possession of said east half of survey No. 1, and shortly thereafter erected a fence around the same, and continuously thereafter used said land for farming and grazing purposes up to the time of the sale thereof by him.
“(5) By deed dated February 20, 1912, George IT. Perrine conveyed the east half of said survey No. 1 to Tom L. Perrine, who took immediate possession thereof, through tenant, and has had a tenant in continuous possession thereof, up to the time of trial, , using and cultivating the same as the said George H. Perrine had done.
“(6) On October 17, 1S87, John B. Shields qualified in the county court of Jeff Davis county, Tex., as the duly qualified and acting-guardian of the estates of Owen B. (aged 11), Mamie J. (aged 8), and John P. (aged 7), his three minor children.
“(7) The inventory and appraisement in said guardianship showed said estate to have on hand ‘80 acres of land in Jeff Davis county, being the east half of survey 7, and known as John B. Shields homestead survey.’
“(8) On January 12, 1888, the county court of Jeff Davis county, sitting in probate, authorized the sale of the aforesaid land by the guardian, under the description aforesaid. The application for said sale and the citation issued thereon also gave the aforesaid description of said land. Said authority to sell was continued from term to term until October 2, 1891, when the guardian filed a report of sale of said land to George H. Perrine. The original report of sale described said land as being the east half of survey No. 1, known as the John B. Shields homestead, but the clerk, in recording said report upon the minutes, erroneously transcribed ‘east’ to read ‘west.’
“(9) On October 14, 1891, the said court confirmed the aforesaid sale by order upon the minutes in part as follows: ‘This day came on to be considered the report of the sale of land by John B. Shields, guardian of the persons and estates of Owen B. Shields, Mamie J. Shields, and John P.- Shields, minors, made by virtue of an order of sale made by this court on the 12th day of January, 1888, of the following described lands, to wit’ [said land was described as being the ‘west’ half of survey No. 1, instead of the ‘east’ half],
“(10) Under date of November 2, 1891, the said _ guardian conveyed 80 acres of land in Jeff Davis county, being the east half of survey No. 1, known as the John B. Shields pre-emption survey by deed, based upon the aforesaid confirmation order, to G. H. Perrine.
“(11) The said G. H. Perrine and the said Tom L. Porrino have, respectively, from year to year, as they accrued, paid all taxes due upon said land.
“(12) The said survey No. 1 (the east half of which is involved in this suit) was patented to John B. Shieldsj and the patent shows that it was a pre-emption survey. Under the undisputed evidence there was only one John B. Shields pre-emption survey in Jeff Davis county, and this was survey No. 1.
“(13) The west half of survey No. 1 was subdivided into blocks and lots. John B. Shields lived, until he sold, on the west half of survey No. i. Certain blocks and lots are inventoried in the guardianship estate, along with the east half of survey No. 1, and the same were sold by the guardian at the same time and in the same deed with the sale of the east half of survey No. 1, and were involved in all the probate proceedings, along with the east half of survey No. 1, the description being the same in all of the instruments.
“(14) The defendant W.' E. Berry’s only interest in. this suit is that he was trustee in a deed of trust given by defendant, Tom L. Perrine, on the land in controversy.”

On the foregoing facts the trial court rendered judgment for the land in controversy in favor of appellee, Perrine, and in favor of Berry for his costs.

On the trial of the case, the court permitted James Stewart to testify that he was well acquainted with the pre-emption surveys in Jeff Davis county and that there was only one pre-emption survey in said county in the name of J. B, Shields, and that the number of said survey was No. 1, and that there was no pre-emption survey numbered 7 in said county in the name of J. B. Shields. Appellants make the admission of this evidence the basis of their first assignment of error, and insist that the records themselves are the best and only evidence of what land was sold, and that the evidence of the witness was a change, contradiction, and impeachment of the record by parol. It will be seen from the above findings of fact that the controversy in this case grows out of the discrepancies in the probate proceedings, in the matters of description of the lands of the estate of said minors In an effort to make sale of said lands by order of the probate court. John B. Shields acquired title to 160 acres of land in Presidio county, now .Jeff Davis county, the description of said land in the patent being survey No. 1 and as a preemption survey, and the estate owned 80 acres of land, the east one-half of said survey No. 1, subject to an estate for life, in John B. Shields, the father and guardian of the persons and estates of said minors, in one-third of the lands of the estate, with remainder to said minors and their descendants. Subsequent to the order of' the probate court, confirming the sale reported by the guardian in 1891, John B. Shields conveyed his estate for life and as guardian of the ■estate of said minors, and, based on the confirmation order of sale of the probate court, •conveyed to George H. Perrine, father of ap-pellee, “in Jeff Davis county, the east half ■of survey No. 1, known as the John B. Shields ■homestead or pre-emption survey.” Per-ttine went into possession, and he and appel-lee have since then continuously remained in possession, cultivating and using same and paying the taxes due thereon. In the latter part of the twelfth finding of fact, the trial court found that “under the undisputed evidence, there was only one John B. Shields pre-emption survey in Jeff Davis county, and this is survey No. 1,” and the agreed statement of facts brought up to this court, instead of the testimony of the witnesses, in the latter part of the seventeenth paragraph, in addition to,the findings of the trial court above, adds to that finding the following:

“And there is no pre-emption or homestead survey in Jeff Davis county numbered 7 in the name of John B. Shields.”.

It is presumably to these facts that the witness Stewart testified. The cases to which we have been referred as sustaining appellant’s contention are not in point, but are cases in which there is a total want of description, or no ambiguity in the description given, or conflict in the calls which suggest a mistake. To sustain the assignment, we must hold that the evidence of Stewart was irrelevant, immaterial, and incompetent, and changed, contradicted, or impeached the records in the probate proceedings. In Collins v. Ball, Hutchins & Co., 82 Tex. 266, 17 S. W. 614, 27 Am. St. Rep. 877, to which we are referred, the land in dispute was “the D. O. Warren one-half undivided interest in a survey of land situated in McLennan and Coryell counties, patented to D. O. and John W. Warren, assignees of Salitha Banks, containing” (a given area). All of the proceeding of the probate court which eventuated in the sale of the land to Warren described it as the “S. Burks” or the “S. Burks head-right.” The Supreme Court held that the probate proceedings did not describe the land at all, unless Burks and Banks are the same name, and held that they are not, neither are they idem sonans, and that “proof that there was no survey in the name of S. Burks in McLennan county did not show that the S. Banks survey had been sold, in the face of the records of the probate court to the contrary.” In that case the court held that there was a total misdescription of the land in dispute, and other distinct land plainly described ; that in case of conflicting descriptions of the land in the record, in order to identify the property conveyed, or in case of ambiguity where the proceedings refer to other records, resort could then be had to extrinsic evidence. In Watts v. Howard, 77 Tex. 71, 13 S. W. 966, the Supreme Court said:

“There .being no ambiguity or conflict in the calls which suggest a mistake, it may be doubted whether, in a proceeding of this character [trespass to try title, but involving only a boundary question] it was competent to show by parol testimony that the surveyor made a mistake in calling for that corner.”

Which testimony, if admitted, would show that the deed under which the plaintiff claimed was intended to embrace land not in fact included in the description. It seems to us that, as said by the Fourth Court of Appeals in Corley v. Goll et al., 8 Tex. Civ. App. 184, 27 S. W. 819, the orders made by the probate court and the conveyance of the land involved in this suit, both of his own interest and that of his minor children, as guardian, based on the order of sale, fairly indicates upon the face of the records a mistake in the orders, in some a mistake in the number of the pre-emption survey and in others a mistake in calling for the west half, instead of the east half, of the John B. Shields preemption survey. Evidently both the probate court confirming the sale and the guardian conveying regarded the order of sale as relating to the land conveyed, and the length of time the deed made has been acted upon without question, would, it seems to us, be sufficient to authorize the conclusion by the trial court in this character of suit that the order of sale was intended to, and did, relate to the land in question. As to the order of sale, the court found that the mistake was made in transcribing the order to the minutes and in transcribing wrote “west” instead of “east.” It is just such conditions as we find here, mistake and ambiguity, that authorize the introduction of parol testimony, not to contradict or impeach the records, and the evidence does not have that effect, but to establish facts from which the mistake can be shown. If there was only one John B. Shields pre-emption survey in Jeff Davis county, containing 160 acres of land, and that No. 1, the court could rightly conclude that it was a mistake to describe it as No. 7.

In the ease of Allen et al. v. Read et al., 66 Tex. 13, 17 S. W. 115, in which there was some difference in the way in which the name of the original grantee, Aughinbaugh, was spelled in some of plaintiff’s deeds, our Supreme Court held that the trial court properly admitted the testimony of the county surveyor that there was but one Aughinbaugh league in Houston county.

The case of Waterhouse et al. v. Gallup et al., 178 S. W. 773, is somewhat similar to the .case at bar, and in that case, the Court of Civil Appeals said that:

“The application of the description to the land conveyed by a deed must always be shown by extrinsic evidence. * * * Unless, from, an inspection of the deed, it appears that the description is so indefinite and uncertain that it cannot, by extrinsic evidence, be made to. apply to any definite land, the deed is not void for insufficiency of description.”

The assignment is overruled.

The remaining assignments and the several propositions thereunder submit as error in the trial court permitting the introduction and consideration as evidence by the trial court of the minutes of the probate court in the matter of the guardianship proceedings of said minors, and the orders of the county judge, sitting in probate, approving and confirming the sale made by the guardian, and the deed of the guardian to Geo. H. Perrine, conveying the land in controversy, and question the efficiency of each. The grounds of the several objections to the introduction of the probate proceedings and the orders of the court are based on the insufficiencies of the several proceedings and orders to sufficiently identify the land to which the several proceedings and orders purport to refer, and the objections to the guardian’s deed are that it was irrelevant, and that it had nowhere been shown that the land described in the deed had been inventoried and ordered sold.

We think the cases to which we have referred in considering the first assignment dispose of these objections contrary to appellant’s contention. The admissibility of the probate proceedings, constituting, as they do, a muniment of the appellee’s title and foundation for the guardian’s deed, is necessary and admissible as evidence of title, if they tend at all to identify the land conveyed. The question arising upon the proceedings and orders and the guardian’s deed would then be: Do they, together with such extrinsic evidence as was properly offered, sufficiently identify the land conveyed by the deed? There is much in each proceeding if they do not sufficiently identify the land, at least tend to do so. They describe it as containing 80 acres of the John B. Shields preemption survey, in Jeff Davis county, and that said acreage is one-half of the survey. They show the survey to be divided into halves, and that the two parts lie with refer-erence to each other, east and west. The deed of John B. Shields conveying his estate for life and his deed as guardian, properly describe the land. The trial court found that the calls for the west, instead of the east, half, and for survey No. 7, instead of No. 1, were clerical errors, and we are of the opinion that his finding is sustained by the probate proceedings and the extrinsic evidence introduced.

Finding no error, the case is affirmed.

On Rehearing.

In appellants’ motion for rehearing, our attention is called to an error, in which we said:

“As to the order of sale, the court found that the mistake was made in transcribing the order to the minutes, and in transcribing wrote ‘west’ instead of ‘east.’ ”

We should have made this statement with reference to the original report of sale, instead of order of sale, as is shown by the eighth finding of facts, as set out in the opinion, and we now make the correction so as to conform our statement to the said finding.

Appellant further urges that the opinion does not pass upon any assignment other than the first. We think it does, but because the opinion does not reveal the exact points urged by the assignments 2 to 9, inclusive, we add that assignments 2, 3, and 4 charge error in admitting in evidence certain minutes of the probate court embracing the order of the court confirming the sale and the guardian’s deed. It will be noted that the opinion holds there was no error in admitting these items. The entries made in the probate proceedings show what action the probate court took preceding the deed, and it would then be a question to be determined whether the several actions of the probate court in connection with the deed were sufficient to pass the title of the ward’s estate. Hermann v. Likens, 90 Tex. 448, 39 S. W. 282; Robertson v. Johnson, 57 Tex. 62; Wells v. Polk, 36 Tex. 126.

Assignments 5 to 9 assign error in the trial. court’s conclusions of law applied to these items. The conclusions of law are, in effect, simply comments by the trial court upon the probative force of the admitted confirmation order and deed, and, in our opinion, are not material to the judgment entered. In fact, it would seem that, to charge error in the conclusions of law of a trial court, other than the judgment, is in effect only to charge that the judgment does not follow the-findings of fact. Appellant does not attack the trial court’s findings of fact, and we think the proper judgment was entered on the facts found.

With the above correction and observation on the assignments of error, the motion for rehearing is, in all other respects, overruled-
      &wkey;jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGGINS, J.

text:
    J. I. CASE THRESHING MACH. CO. v. LIPPER.
    (No. 482.)

    (Court of Civil Appeals of Texas. El Paso.
    Dec. 16, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Chattel Mortgages <&wkey;186 — Lien and Priority— Rights of Pukohaser.
    Where plaintiff sold automobiles to a dealer, taking notes secured by chattel mortgage in the ordinary form on the automobiles and a lien on other real and personal property, Rev. St. 1911, art. 3970, providing that a mortgage or lien given by the owner of any stock of goods, wares, or merchandise daily exposed to sale in parcels in the regular course of the business shall be deemed fraudulent and void, applied, and the mortgage was invalid as against a purchaser of an automobile from the dealer, since the transaction revealed no reservation of title in the plaintiff, but only a sale.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 368; Dec. Dig. <§=wl86.]
    2. Chattel Mortgages &wkey;>201 — Lien and Priority — Evidence.
    Evidence held sufficient to show that a sale of automobiles to a dealer was in contemplation that they would be exposed for sale by him in the ordin,ary course of business, so that a mortgage given by hin; on the automobiles was void as provided by Rev. St. 1911, art. 3970.
    [Ed. Note. — For other cases, see Chattel Mortgages, Cent. Dig. § 360; Dec. Dig. <&=>201.]
    3. Appeal and Error <®=^742 — Record on Appeal — Assignment of Error.
    Where, subjoined to an assignment of error, a new proposition is argued but is not raised by a separate assignment, and no supporting proposition is thereto attached, the question cannot be considered on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. ■§ 300; Dec. Dig. <S&wkey;742.]
    4. Appeal and Error <&wkey;S82 — Estoppel — Amount of Recovery.
    Where plaintiff by writ of sequestration had secured an automobile alleging that it was worth $1,000, he could not thereafter question the correctness of the court’s finding against him that it was worth $850, although there was evidence to show that it was worth only $600.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3591-3610; Dec. Dig. &wkey;> 882.]
    Appeal from District Court, Harris County; N. G. Kittrell, Special Judge.
    Sequestration by the J. I. Case Threshing Machine Company against O. M. Lipper. From a judgment for the defendant, plaintiff appeals.
    Affirmed.
    A. B. Wilson and Cole & Cole, all of Houston, for appellant. Lawrence Sochat, of Houston, for appellee.

      Application lor writ of error pending in Supreme Court.

   HIGGINS, J.

Upon a former day of this term, this appeal was dismissed (179 S. W. 701) for want of finality in the judgment of the court below. By supplemental transcript since filed, it is shown that a final judgment was rendered and has been entered, so the order of dismissal heretofore made is set aside, and the appeal will now be considered upon its merits. J. J. Gorman was engaged in a general automobile business in city of Houston, buying and selling new and secondhand ears. He also let out cars for hire. He was agent for the sale of the Case cars, manufactured by appellant. Appellant placed a big sign in front of his place of business, viz., “Case Automobiles.” On June 6, 1913, Gorman gave appellant a written order to ship or deliver to him at Houston six Case cars for which he agreed to pay $9,651, evidenced by notes “secured by proper storage, first mortgage on said automobile,” and by lien upon other real and personal property. This order was accepted by appellant and the cars delivered to Gorman. On June 7, 1913, Gorman gave appellant a mortgage in the ordinary form of chattel mortgages covering the purchased cars and other property to secure the payment of the purchase price of the six cars. Among the cars so purchased and mortgaged was a Case “30” No. 19506. Thereafter, Gorman, in the ordinary course of trade, sold and delivered car No. 19566 to A. E. Lundell, who, in turn, sold and delivered same to appellee, Lipper. By its intervention, in this cause, appellant sought recovery of said car or its value. At its instance, a writ of sequestration was issued and the car seized. Upon trial, Lipper recovered a judgment against appellant for the value of the car in sum of $850.

The primary question raised by this appeal relates to the validity of appellant’s mortgage upon the car as against Lipper. Article 3970, Revised Statutes, provides:

“Every mortgage, 'deed of trust or other form of lien attempted to be given by the owner of any stock of goods, wares or merchandise daily exposed to sale, in parcels, in the regular course of the business of such merchandise, and contemplating a continuance of the possession of said goods and control of said business, by sale of said goods by said owner, shall be deemed fraudulent and void.”

Appellant asserts that under authority of Bowen v. Kansing Wagon Works, 91 Tex. 385, 43 S. W. 872, and other cases following same, the article quoted has no application, because its lien is in the form of a reservation of title to the property until its purchase price is paid. This point is raised by an attack upon the correctness of the trial court’s finding that the automobile was sold and delivered without any reservation of title by appellant and its conclusion of law that the mortgage was invalid. The two first assignments relate to this phase of the case, and they are based upon the premise that there was a reservation of title by appellant to secure the payment of the purchase price. This premise is false, as the uncontradicted evidence shows that the cars were sold and delivered to Gorman without any such reservation of title, and the only lien to secure the purchase-money notes is that evidenced by the instrument of June 7, 1913, executed by Gorman in the ordinary form of a chattel mortgage.

The third assignment reads:

“The court erred in rendering a judgment for defendant Lipper for the car in controversy, because there is no evidence that the cars were sold by the J. I. Case Threshing Machine Company to defendant Gorman in contemplation that they would be exposed for sale by defendant Gorman as a dealer in the ordinary course of business, but, on the contrary, the uncon-tradicted evidence is that the J. X. Case Threshing Machine Company did not know the purpose or object of the purchase of said automobiles by defendant Gorman, or what defendant Gorman would do with said automobiles, and that the sign, ‘Case Automobiles,’ was placed by J. X. Case Threshing Machine Company at Gorman’s place of business.”

This assignment, likewise, is without merit. Without undertaking to detail all the evidence supporting the finding of the trial court that the six cars were sold and delivered to Gorman in contemplation by appellant that they would be daily exposed for sale in the regular course of business, it is sufficient to merely call attention to the nature of Gorman’s business, the sign placed there by appellant, the past business relations between the parties, and the testimony of H. F. Ertsberger, appellant’s branch manager when the cars were sold to Gorman and who assisted in taking the order. He testified:

“I was the branch manager for the Case Threshing Machine Company here.- I am not their manager now. I am a salesman. I sold Gorman- a good many of the machines that he bought from the Case people. I reckon he bought those cars because he wanted them. I presume he wanted to sell them again. He was authorized to sell those cars that he bought for the Case people. He had a contract with them. I-Ie had a contract to sell the cars on commission. Whenever he bought cars, they were his to do with as he pleased. Whenever he bought cars and gave a mortgage for them, if he complied with his contract, he could do with them as he pleased. I don’t know whether he bought these cars to sell or for his own use. I don't know how many cars I have sold him. I don’t know whether it was 10 or 12, or whether it was 2 or 3. I know that this mortgage calls for 10 cars. He bought 6 of those ears from me. I don’t know whether he bought those cars for his own use or not. I have sold him cars besides these 6 cars in this mortgage, but I don’t know how many, and I don’t kn-ow whether they were for his own use or not. He was a merchant engaged in the business of selling automobiles, he sold Case automobiles and had a sign on his place of business, ‘Case Automobiles for Sale.’ He was authorized to sell Case automobiles by a contract.”

Also, the testimony of appellant’s collection manager for that territory, Arrance, as follows:

“That is not the only bill of goods we have sold Gorman. We have sold him quite extensively. He was our local ag’ent for the Case cars. A man who wanted to buy a Case car did not necessarily have to go to Gorman to buy it. We sold them here from our wareroom. In case we sold one from the wareroom, we did not give him credit for the sale. Outside of ourselves, he was the only man in Houston who handled the Case car. We had a big sign- there in front of his place, ‘Case Automobiles.’ ”

In the argument subjoined to this assignment, it is suggested that automobiles would not be considered such a “stock of goods, wares and merchandise daily exposed to sale, in parcels,” as is contemplated by article 39T0. This question is not raised by the assignment itself, nor its supporting proposition, and is not properly presented for determination. Therefore no opinion in regard thereto is expressed.

It is last assigned as error that the court erred in fixing the value of the car at $850, because the only evidence in regard thereto was the testimony of Arrance that it was worth $600. Appellant in his intervention alleged the car was worth $1,000. It is thus not in a position to question the correctness of the court’s finding that it was worth $850. Ogden v. Bosse, 86 Tex. 336, 24 S. W. 798; Railway Co. v. De Walt, 96 Tex. 121, 70 S. W. 531, 97 Am. St Rep. 877.

Affirmed.
      <5&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    CARTER-MULLALY TRANSFER CO. v. ANGELL.
    (No. 5559.)
    (Court of Civil Appeals of Texas. San Antonio.
    Dec. 22, 1915.)
    1. Carriers <&wkey;408 — Carriage of Passengers—Loss of Baggage—Petition.
    A petition, seeking recovery against a carrier for the loss of a valise, averred that it contained enumerated articles of a reasonable value stated, which were for the necessary comfort, convenience, and adornment of plaintiff and other members of her family who were traveling with her, and so were proper articles of baggage, is sufficient without averring evidentiary facts which would show the articles were proper articles of baggage.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. &wkey;408J
    2. Carriers <&wkey;408—Loss of Baggage—Actions—Evidence—“Hire’ ’—“Borrow.”
    In an action against a transfer company for the loss of a valise from one of its carriages in which plaintiff and her family made their way to take a train, testimony that plaintiff hired the vehicle is sufficient to show payment of consideration for the use of same; the word to “hire” meaning to engage in service for a stipulated reward in contradistinction to “borrow,” which implies a gratuitous use.
    [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 1557-1571; Dec. Dig. <@^40S.
    For other definitions, see Words and Phrases, First and Second Series, Borrow; Hire.]
    Error from Bexar County Court for Civil Cases; John H. Clark, Judge.
    Action by Mrs. Florence R. Angelí against the Carter-Mullaly Transfer Company. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    Arnold, Cozby & Peyton, of San Antonio, for plaintiff in error. M. S. Ilallam, of San Antonio, for defendant in error.
   CARL, J.

The defendant in error sued Carter-Mullaly Transfer Company for the loss of a valise containing various articles which were alleged constituted and were proper articles of baggage. The petition charged that defendant In error ordered a closed carriage from plaintiff in error for the purpose of transporting herself and family from her home to the Southern Pacific depot, where they were to take passage on the trip they intended making;' that plaintiff in error was a common carrier, and when the carriage arrived the valise was delivered to the agent of plaintiff in error, who took same into his exclusive care and custody hy placing it up on the front with the driver, and, when they arrived at the depot, the valise was gone. The driver said he had lost it, but would go back and see if he could find it. The valise was never found.

“It is admitted that the testimony of the plaintiff, as to the value of the lost articles, was sufficient to support the judgment rendered, in so far as the amount of the judgment was concerned, and that her testimony was sufficient to show that said lost articles were proper articles of baggage on said occasion.”

But there are several assignments to the effect that the petition was insufficient because it did not show facts which would constitute the articles baggage in law, such allegations being merely the conclusion of the pleader. The fifth paragraph of the petition is as follows:

“(5) That the said valise contained the following articles, which were and are of the reasonable values stated, respectively, which articles were necessary for the comfort, convenience, and adornment of plaintiff and the other members of her family, and were proper articles of baggage for their use on the trip which they were then taking, to wit. * * * ”

And then follows a list of the articles contained in the valise. This petition directly and plainly charges that the articles named were proper articles of baggage on such a trip as they were taking and were necessary for the comfort, convenience, and adornment of plaintiff and the other members of her family. It placed before ,the defendant) everything it was necessary for it to know in order that its defense might be made. If any article mentioned was not a proper item of baggage, the defendant had every opportunity to show that it was not. Good pleading does not require that the evidence be set. out, but only those things which it is necessary to establish by evidence. The first six assignments are overruled, since they all deal with the matters above discussed.

The seventh assignment complains that the court erred in rendering judgment, on the testimony, because it does not show that the relation of carrier and passenger existed. The reason given is that it does not show that any consideration was paid or agreed to be paid for the service performed by the transfer company, and that since that was true no liability would arise, because no willful negligence was alleged or proved. It was admitted that the transfer company is a common carrier, and the plaintiff testified that she “hired the hack” for this trip.

“To hire is to engage in service for a stipulated reward; as to hire a servant for a year, or laborers by the day or month; to engage a man to temporary service for wages.” McCluskey v. Cromwell, 11 N. Y. 593.

This case holds that “hiring” implies a request and a contract for compensation, and has but this one meaning when used in the ordinary affairs and business of life. “Borrowing” is a gratuitous use; while “hiring” is always for a price or a stipend. Neel v. State, 33 Tex. Cr. R. 408, 26 S. W. 726, citing Blaekstone’s Com. p. 453. So we are not called upon to assume that the transfer company entered into a gratuitous service for defendant in error, for she says she “hired” the service, and that means that the company either received its reward or the promise of the same, and either one would be sufficient. It may be that the company objects to being “hired,” but that is what plaintiff below says she did, and it was not denied. Therefore we must hold that by hiring the company the plaintiff agreed to pay a stipend.

The judgment is affirmed.
      <gcs>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes