text:
    CITY OF AUSTIN, Petitioner, v. Joe M. TEAGUE et al., Respondents.
    No. B-7197.
    Supreme Court of Texas.
    July 26, 1978.
    Rehearing Denied Oct. 4, 1978.
    Jerry L. Harris, City Atty., Roy Rutland, III, Asst. City Atty., Austin, for petitioner.
    Stayton, Maloney, Hearne & Babb, William M. Knolle and Douglass D. Hearne, Austin, for respondents.
   POPE, Justice.

Joe M. Teague, Adon Sitra and Cecil Ruby Company, Inc. sued the City of Austin for damages for inverse condemnation of eight and one-half acres of land bordering South Interregional Highway 35 in Austin, Texas. They asked also for an order commanding the City to issue a Water Development Permit required by the City’s Creek Ordinance. After a jury trial the court ordered the City to issue the requested permit and rendered judgment for $109,939 for a taking and damaging of the property for the period from June 26,1975, to November 1,1976. The City obeyed the order to issue the permit and did not appeal from that part of the judgment. It appealed only from the judgment for damages. The court of civil appeals affirmed the judgment of the trial court conditioned upon a remittitur of $30,000 which the plaintiffs accepted. 556 S.W.2d 400. We reverse the judgments of the courts below and remand the cause to the trial court for a retrial of the damage issue.

When the plaintiffs purchased the land in late 1972, it was zoned as a local retail district. That zoning permitted such businesses as banks, motels, grocery stores and buildings up to sixty-five feet in height. In January, 1973, the plaintiffs bulldozed the brush, trees and other vegetation from the site to prepare the land for development. On January 11, 1973, local residents appeared before the City Council and urged it to stop further development. They asked the Council to take steps to have the site preserved as a scenic easement bordering the southern approach to downtown Austin. On January 26 the Council responded by adopting a resolution requesting the Texas Highway Department to study the feasibility of acquiring the land as a scenic easement.

Plaintiffs a short time later applied to the Austin Department of Public Works for a permit to enclose in concrete culverts Harper’s Branch and a small tributary called the Ramble, both of which crossed the tract. That department’s approval of the permit was appealed to the Planning Commission, which denied the application on April 10, 1973. At that time, plaintiffs were in complete compliance with the demands of every existing ordinance. At the meeting in which the Commission denied the permit, the Director of Planning recommended changes in certain existing ordinances and time for further study of the proposed changes. Plaintiffs then offered to sell the tract to the Texas Highway Department at a price below market value, but the offer was declined.

Plaintiffs submitted a second application for a permit after agreeing to a number of restrictions that were not included in the first application. The City Engineer again recommended that the permit be granted. On appeal, the Planning Commission had a tie vote which, under the City ordinance, did not operate to defeat the City Engineer’s decision. On February 14, 1974, the City Council again denied the permit.

The City ordinances under which plaintiffs had made their two applications for a permit required compliance with certain engineering, drainage, and structural requirements, all of which the plaintiffs fulfilled. On February 14, 1974, the same day that the City Council denied the second application, the City Council set a date for a public hearing on what is called the New Creek Ordinance, which was adopted on March 7, 1974. That ordinance provided in its section (f) that any development must preserve “the natural and traditional character of the land and waterway to the greatest extent feasible.” The new ordinance for the first time required a Waterway Development Permit.

In February, 1975, the plaintiffs filed a third application for a permit. Plaintiffs’ application eliminated the earlier proposal to enclose Harper’s Branch in a culvert and proposed instead that the creek be rechan-nelled and lined with hand-laid stone. The Engineering Department and the Planning Commission again approved the application, but the City Council denied the third application on June 26, 1975. The New Creek Ordinance, which had been adopted after the second application was denied, was the basis of the third denial.

The posture in which the case reaches us is that the City wrongfully denied the permit sought by plaintiffs’ third application. The trial court ordered the City to issue the permit to plaintiffs, and from that part of the judgment, the City did not appeal. The City cannot now dispute that its action was, as stated by the court of civil appeals, “unauthorized, unreasonable, arbitrary and an invalid exercise of the police power.” The City’s denial of the permit was (1) to prevent all development of the tract and (2) to preserve it as a scenic easement for the benefit of the public.

The City seeks to escape liability for damages by its contention that the denial of a permit was an exercise of its “police power.” Plaintiffs, on the other hand, say that the Texas Constitution entitles them to damages for the City’s exercise of the power of “eminent domain.” Tex.Const. art. I, § 17. The labels are not helpful. These two doctrines — police power and eminent domain — merge at so many places when applied to specific problems, that the legal battlefields have been variously termed a “sophistic Miltonian Serbonian Bog,” Brazos River Authority v. City of Graham, 163 Tex. 167, 176, 354 S.W.2d 99, 105 (1962); a “crazy-quilt pattern,” San Antonio River Authority v. Garrett Brothers, 528 S.W.2d 266, 273 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.); “the manifest illusoriness of distinctions,” DuPuy v. City of Waco, 396 S.W.2d 103, 107 (Tex.1965); producing decisions that are “conflicting, and often . . . irreconcilable in principle.” Sauer v. City of New York, 206 U.S. 536, 548, 27 S.Ct. 686, 690, 51 L.Ed. 1176 (1906). It is for that reason that this court has in three decisions rejected the dichotomy, holding that one’s property may not be taken without compensation under some circumstances even in the exercise of the police power. DuPuy v. City of Waco, supra; San Antonio River Authority v. Lewis, 363 S.W.2d 444 (Tex.1963); Brazos River Authority v. City of Graham, supra.

City of Austin relies upon several correctly decided cases which, for one reason or another, placed their decisions under the aegis of police power. They include City of San Antonio v. Pigeonhole Parking of Texas, 158 Tex. 318, 311 S.W.2d 218 (1958); Ellis v. City of West University Place, 141 Tex. 608, 175 S.W.2d 396 (1943); Urban Renewal Agency of Austin v. Georgetown Savings & Loan Ass’n, 509 S.W.2d 419 (Tex.Civ.App.—Austin 1974, writ ref’d n. r. e.); Thurow v. City of Dallas, 499 S.W.2d 347 (Tex.Civ.App.—Dallas 1973, writ ref’d n. r. e.); City of Houston v. Biggers, 380 S.W.2d 700 (Tex.Civ.App.—Houston 1964, writ ref’d n. r. e.); Kirschke v. City of Houston, 330 S.W.2d 629 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.).

In Brazos River Authority v. City of Graham, supra, the Authority had erected a dam and because of siltation in the lake, water was backed into the City of Graham’s sewage disposal plant. City of Graham filed a suit for inverse condemnation which Brazos River Authority defended upon the principle that it was only exercising police power for which the government is not liable. While recognizing that the lines between police power and the power of eminent domain are often blurred and disregarded, this court held that a decent regard for private property rights, rights that enjoy the protection of the constitution, required governmental agencies in acquiring properties for public purposes generally to proceed under the power of eminent domain rather than under the police power. In that case there was an actual taking. The principle was extended in San Antonio River Authority v. Lewis, 363 S.W.2d 444 (Tex.1963), to protect a landowner’s right to have the waters of the San Antonio River that he used for irrigation purposes to continue to flow in their accustomed channel. The court again refused to place the case on one side or the other of the mysterious line which is supposed to divide police power from eminent domain, and held that the City was liable for damages.

In DuPuy v. City of Waco, supra, this court even more thoroughly summarized the precedents which denied damages to a landowner that arose as an incident to the exercise of the police power and compared those with our other cases which awarded damages to a landowner to protect private property rights when the owner suffers losses not common to the general public. After reviewing the several efforts to find the line between police power and eminent domain, this court again refused to “compartmentalize” what is manifestly illusory. The court in DuPuy after permitting recovery because the property owner was denied all reasonable access to his property, contrasted that holding with the denial of damages where there was only an incidental interference with the right of access. See Moorlane Company v. Highway Department, 384 S.W.2d 415 (Tex.Civ.App.—Amarillo 1964, writ ref’d n. r. e.). In DuPuy we discussed most of the cases relied upon by City of Austin in this present case. We deem it unnecessary to repeat the analysis of the specific cases which reached varying results.

DuPuy v. City of Waco, supra, is this court’s last expression of our rejection of the categorization of governmental conduct as an exercise of police power or as an exercise of eminent domain. The case went further, however, and stated that there were better tests. We held that a government’s correction of something that is a “detriment to the public” or a mere “regulation” indicates that compensation should not be allowed. DuPuy stated, on the other hand, that proof of a “taking,” or of property loss to the owner “not common to the general public,” indicates that the government should pay for the owner’s loss. There is perhaps no one test and no single sentence rule that can resolve the varying problems that may arise by government’s interference with a property owner’s full exercise of his rights.

The need to adjust the conflicts between private ownership of property and the public’s interests is a very old one which has produced no single solution. Professor Joseph L. Sax in his article Takings and the Police Power, 74 Yale L.J. 36 (1964), traces the obscure differences between police power and eminent domain as far back as Gro-tious, who wrote in the first quarter of the seventeenth century. Professor Sax mar-shalls the many different tests which have been tried in the search to resolve the ancient uncertainty. Most tests have been satisfactory when applied to situations similar to the case spawning the rule, but disappointing in instances that do not fit a special mold. As already mentioned in DuPuy, there is good reason to deny compensation when there is no more than a regulation of a right or the prohibition of some noxious use, or when the public need outweighs the private loss.

As a test for payment to the landowner, Professor Sax points out the traditional test or rule which asks whether there has been an actual physical taking. See Sax, Takings and the Police Power, 74 Yale L.J. 36, 46-48 (1964). That test often proves unsatisfactory under our Texas constitutional provision that entitles the owner to damages when his property is taken “or damaged.” The quoted words expand the owner’s right to compensation and in DuPuy we held that “a direct physical invasion” is not required under section 17, article I, of the Texas Constitution by reason of the addition to the Constitution of 1876 of the words “damaged or destroyed.” 396 S.W.2d at 108. See also, State v. Hale, 136 Tex. 29, 146 S.W.2d 731 (1941); Gulf, C. & S.F.R.R. Co. v. Eddins, 60 Tex. 656 (1884); Allen v. City of Corpus Christi, 247 S.W.2d 130 (Tex.Civ.App.—San Antonio 1952), aff’d, 152 Tex. 137, 254 S.W.2d 759 (1953). There was the case-by-case inquiry, espoused by Justice Oliver Wendell Holmes, which would measure the extent or degree of the burden upon one’s property. Accord, Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828, 833 (1958); Houston & T.C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 653 (1905). Important in that inquiry would be a determination whether the property was rendered “wholly useless,” Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 52 L.Ed. 828 (1908); Interstate Consol. St. Ry. v. Massachusetts, 207 U.S. 79, 87, 28 S.Ct. 26, 52 L.Ed. 111 (1907), or whether the governmental burden created a disproportionate diminution in economic value or caused a “total destruction” of the value, Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960).

There is still another test which is sometimes helpful. It allows recovery of damages when the government’s action against an economic interest of an owner is for its own advantage. Morris County Land Improvement Co. v. Township of Parsippany-Troy Hills, 40 N.J. 539, 193 A.2d 232 (1963); Miller v. City of Beaver Falls, 368 Pa. 189, 82 A.2d 34 (1951). Cf. Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962). A recent application of that test is found in San Antonio River Authority v. Garrett Brothers, 528 S.W.2d 266 (Tex.Civ.App.—San Antonio 1975, writ ref’d n. r. e.). In that case the City of San Antonio rejected plans for a proposed subdivision because the City was planning sometime in the future to acquire the land by eminent domain for a dam site and a lake or reservoir for recreation purposes. By suppressing development of the area, the City of San Antonio would keep down its costs when it exercised its powers of eminent domain. The court of civil appeals rejected the argument that the city was exercising its police powers and ruled that the government had become a participant to gain or acquire property in its own right. It was not acting as a neutral governmental arbiter to resolve conflicts between its citizens. It stated:

The social desirability of leaving government free to seek its own enrichment at the expense of those whom it governs under the guise that it has the power to regulate harmful conduct is not readily apparent. See Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964). To permit government, as a prospective purchaser of land, to give itself such an advantage is clearly inconsistent with the doctrine that the cost of community benefits should be distributed impartially among members of the community. 528 S.W.2d 266, 274.

Kirschke v. City of Houston, 330 S.W.2d 629 (Tex.Civ.App.—Houston 1959, writ ref’d n. r. e.), probably conflicts with San Antonio River Authority v. Garrett Brothers. While there are minor differences between the two cases, we disapprove Kirschke.

It is our opinion that the plaintiff landowners in the present case have demonstrated to both the jury and the trial court that the City of Austin by rejecting the third application for a Waterway Development Permit sought to impose a servitude upon the property to preserve “the natural and traditional character of the land and waterway” — that is, the City wanted to use plaintiffs’ land as a scenic easement on the southern approach to the City of Austin. Plaintiffs did not appeal from the denial of their first two applications for a permit, but the record shows that those permits were denied pending the enactment of the new ordinance that was designed to maintain the status of land.

At the time the City denied the third application for a permit, plaintiffs lost all use of their land; the City by indirection acquired the scenic easement at no cost which it had recommended that the State Highway Department acquire by purchase. In doing so it also singled out plaintiffs to bear all of the cost for the community benefit without distributing any cost among the members of the community. Cf. Fort Worth Improvement Dist. No. 1 v. City of Fort Worth, 106 Tex. 148, 158 S.W. 164, 169 (1913).

The Texas legislature enacted the Highway Beautification Act in 1972, recognizing that strips of land along highways such as Interstate 35 are useful for the preservation and enhancement of scenic beauty, but there was no suggestion in the Act that lands could be taken for that purpose without payment. Tex.Rev.Civ.Stat.Ann. art. 6674v-l provides, “The acquisition may be by gift, purchase, exchange or condemnation.” There was no suggestion that government may take or hold another’s property without paying for it, just because the land is pretty. Our conclusion is that the City of Austin was liable in damages to the plaintiffs.

Plaintiffs, having proved their right to damages, also assert that they proved damages. We hold that they did not. Plaintiffs asserted their loss of use of their land for the temporary period from June 26, 1975, the date the City denied the third application, to November 1, 1976, the date the City issued the permit in obedience to the trial court’s order. They claim the loss of rentals during that period of time. Loss of rentals is an appropriate measure of damages for the temporary loss of use of land. The Sabine & East Texas Ry. Co. v. Joachimi, 58 Tex. 456 (1883); Bradley v. McIntyre, 373 S.W.2d 389 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.); Humble Pipe Line Co. v. Day, 172 S.W.2d 356 (Tex.Civ.App.—Waco 1943, writ ref’d w. o. m.); City of Tyler v. House, 64 S.W.2d 1007 (Tex.Civ.App.—Texarkana 1933, no writ); Gulf Pipe Line Co. v. Hurst, 230 S.W. 1024 (Tex.Civ.App.—San Antonio 1921, no writ); City of Paris v. Jenkins, 122 S.W. 411 (Tex.Civ.App.1909, no writ); Annot., Compensation for Temporary Taking, 7 A.L.R.2d 1297 (1949). Rental value is “that amount which, in the ordinary course of business, the premises would bring or for which they could be rented, or the value, as ascertained by proof of what the premises would rent for, and not the probable profit which might accrue.” 76 C.J.S. Rental at 1168 (1952).

Plaintiffs introduced two real estate experts who testified about the expected yield or return on lands in the neighborhood. Mr. Joe Crow, an experienced real estate man since 1940, testified that he owns land across the highway from plaintiffs’ property, owns other property along Interstate 35, has sold, developed, and is still handling other persons’ property along that highway and other thoroughfares in Austin. He testified that an annual ten percent net return is “anticipated,” and “is common in the business.” Mr. Jim Frederick, a qualified real estate appraiser, testified that the property would yield a nine to ten percent net return on the value of the property based on his knowledge of properties near to but south of the tract in question. Neither expert testified that the raw, undeveloped land would earn anything before it was sold, rented, or developed.

Plaintiffs are not seeking lost profits, but the rule about the certainty of losses of profits is instructive also about the certainty of losses of rentals. In Southwest Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938), the rule was stated that losses must be shown by competent evidence and with reasonable certainty. It is not enough that profits merely be anticipated or hoped for; they must be established with reasonable certainty. This rule was followed in Atomic Fuel Extraction Corp. v. Slick’s Estate, 386 S.W.2d 180 (Tex.Civ.App.—San Antonio 1964), writ ref’d n. r. e. per curiam, 403 S.W.2d 784 (Tex.1965). In rejecting Atomic’s argument that future profits were recoverable since they were within the contemplation of both parties when the contract was signed, the court said that in those instances which have permitted recovery, there was some data and history of profits from an established business.

Anticipated rentals from land that is presently undeveloped is just as speculative and uncertain as measuring anticipated profits from a presently unestablished business. Plaintiffs testified to no kind of plan for the land. The evidence shows that plaintiffs owned the adjacent four-acre tract of land, acreage which had originally been a part of the tract now in issue. Plaintiffs obtained a permit to relocate the creek bed on that tract in August 1974. Plaintiffs testified that they had planned to erect a three-story office building on the tract, but at the time of the trial of this case in October 1976, construction had not begun and the tract was still vacant and nothing had been earned.

The plaintiffs did not prove with reasonable certainty that the unimproved tract would in reasonable certainty have produced any return at all. San Antonio River Authority v. Garrett Brothers, 528 S.W.2d 266, 274 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.), was a case in which the plaintiff recovered damages against a municipality in a case like this one, but the damages that were allowed were the expenses which the plaintiff necessarily incurred as a result of the temporary interference with the development and use of its land. This record shows that plaintiffs suffered some damages by reason of Austin’s wrongful denial of its application for a permit, but there was no proof that supports the jury finding of the value of plaintiffs’ loss of use. It appears, however, that the plaintiffs sustained some actual damages in seeking and obtaining the permit to which they were entitled.

We reverse the judgments of the courts below and remand the cause to the trial court for a retrial of the damage issue.

      . Whereas it has come to the attention of the City Council that certain land which is bound on the north by Riverside Drive and runs south along Interstate Highway 35 and through which a creek known as Harper’s Branch, is being developed in such a manner that many trees and shrubs are being destroyed, and in such a manner that the natural state of Harper’s Branch will be altered by the installation of pipe and other man-made facilities; and
      Whereas the above described land constitutes one of the most natural scenic areas within the City of Austin, and presents a beautiful and inspiring gateway to the Capitol City for all those who enter the City on the South Interre-gional Highway 35; and
      Whereas many citizens of Austin have expressed concern over the destruction of the natural beauty of this scenic creek area; and
      Whereas various citizens have contacted the Highway Department of the State of Texas, urging the Department to acquire this land for a scenic easement,
      Now, Therefore, be it resolved by the City Council of the City of Austin, that by this present City Council of the City of Austin does hereby support the effort of all those who are working toward the preservation of the above described area, and does hereby formally request that the State of Texas Highway Department immediately investigate the feasibility of acquiring the above described land as a scenic easement for the benefit of all the citizens of the State of Texas.

      . The ordinance provided:
      “A development permit shall be issued if upon review of the application therefor it is found:
      (a) That the development plans provide a sufficient waterway for the design flood, due allowance having been made for the fact that the quantity of water coming down any waterway may be increased as storm sewers and drains are built in the future; and,
      (b) That any proposed walls, arches or whatsoever other form of proposed improvements are of sufficient strength to resist any pressure of earth or building from the outside and pressure or abrasion of water and debris from the inside; and,
      (c) That all proposed grades are such that water will not gather in pools which may become stagnant or foul; and,
      (d) That the proposed development will not result in additional identifiable adverse flooding of other property; and,
      (e) That both temporary and permanent erosion control measures are adequate to minimize siltation of the waterway; and,
      (f) That the proposed development preserves the natural and traditional character of the land and waterway to the greatest extent feasible.”

      . A king may two ways deprive his subjects of their right, either by way of punishment or by virtue of the eminent power. But if he does it the last way, it must be for some public advantage, and then the subject ought to receive, if possible, a just satisfaction for the loss he suffers, out of the common stock. De Jure Belli et Pacis (1625), Bk. II, ch. XIV, § VII.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SHRIRO CORPORATION, Petitioner, v. Morris A. WARD and Clyde DeLay, Respondents.
    No. B-7442.
    Supreme Court of Texas.
    July 26, 1978.
    Rehearing Denied Oct. 4, 1978.

      Jay M. Goltz, Dallas, for petitioner.
    Stephen M. Stasio, S. L. Lewis, Dallas, for respondents.
   PER CURIAM.

Plaintiff, Shriro Corporation, sued and recovered judgment against Morris Ward and Clyde DeLay. The court of civil appeals reversed the judgment and rendered judgment that plaintiff take nothing, holding that plaintiff had elected an inconsistent remedy by making a settlement with Transcontinental Insurance Company. 561 S.W.2d 589.

Shriro Corporation constructed the Rio Lado Apartments in Austin for Rio Lado, Limited, a venture whose general partner was Morris Ward. Ward secured a builder’s risk insurance policy from Transcontinental Insurance Company to protect against damage and losses while the apartments were under construction. Shriro Corporation and Rio Lado were named as insureds in the policy. Ward secured the policy through defendant Clyde DeLay’s insurance agency.

While the apartment complex was under construction it sustained water damage. Morris Ward, acting for Rio Lado, Limited, made an agreement with Shriro Corporation to receive and pay over the insurance proceeds to Shriro Corporation when Shriro completed the necessary repairs. Shriro Corporation then hired Mr. R. G. Beneke and his claims adjusting firm to present its claim to Transcontinental. The insurer, Transcontinental, honored the claim and issued a draft for $4,241.61, but the draft omitted the name of Shriro Corporation, a named insured. The draft was made payable to Rio Lado, Beneke, and the mortgagee. Ward, on behalf of Rio Lado, Beneke, and the mortgagee, endorsed the draft and, without paying, any of the proceeds to Shri-ro, DeLay and Ward appropriated the funds to their own use.

Shriro Corporation sued Transcontinental for negligently omitting its name as a payee on the draft. In the same suit, Shri-ro Corporation sued Ward and DeLay for converting money that belonged to Shriro Corporation, and sued its agent Beneke for an alleged breach of duty in failing to insure that Ward paid the proceeds to Shriro before Beneke endorsed the draft. Shriro Corporation then settled its claim against Transcontinental for $1,500.00 and gave Transcontinental only a general release. The jury refused to find Beneke breached any duty.

The court of civil appeals, in reversing the judgment for Shriro Corporation against Ward and DeLay, held that Shriro Corporation’s receipt of the $1,500.00 from Transcontinental was an election of remedies which barred the action against Ward and DeLay. The court treated Shriro Corporation’s suit against Transcontinental as one which complained of Transcontinental’s refusal to pay the claim under its policy. A suit for refusal to pay, said the court of civil appeals, was inconsistent with the other claim which alleged that Transcontinental had actually paid, but that Ward and DeLay converted the funds. The court relied on Lomas and Nettleton Co. v. Huckabee, 558 S.W.2d 863 (Tex.1977), and construed this present action as one which alleged Transcontinental’s liability for its failure to pay the claim. It is in that respect that the decision of the court of civil appeals conflicts with Lomas and Nettleton.

Shriro Corporation’s claim was not that Transcontinental refused or failed to pay the claim; it did in fact make the full payment, as Shriro affirmatively pleaded. Shriro’s allegation was that it negligently omitted Shriro’s name, thereby enabling the endorsement and conversion by the other payees. Shriro Corporation’s suit was not a suit for failure to pay; it was a suit for negligent omission of an insured’s name on the draft. The suit against Transcontinental for its negligence was not inconsistent with the allegations against the. other defendants whom Shriro charged with conversion.

This court’s opinion in Custom Leasing, Inc. v. Texas Bank & Trust Co., 491 S.W.2d 869 (Tex.1973), affirmatively shows that one may plead independent wrongs which interplay to contribute to a single harm without being inconsistent under the election of remedies doctrine. Also, this is not a case in which the settlement or judgment in one suit is paid in an amount which equals or exceeds one’s damages, in which instance the satisfaction doctrine will bar a second suit. See T. L. James & Co., Inc. v. Statham, 558 S.W.2d 865 (Tex.1977).

The actions that Shriro Corporation asserted against Transcontinental on the one hand and against the other defendants for conversion of Shriro’s money are not inconsistent. We grant Shriro’s application for writ of error and without hearing argument, we reverse the judgment of the court of civil appeals by reason of the conflict with our opinions in Lomas and Nettleton Co., supra, and Custom Leasing, supra. Tex.R.Civ.P. 483. Since appellants’ briefs in the court of civil appeals contained points not considered by that court, including factual points beyond this court’s jurisdiction, we remand the cause to the court of civil appeals. Custom Leasing, Inc. v. Texas Bank & Trust Co., supra at 872; Wood v. Kane Boiler Works, 150 Tex. 191, 201, 238 S.W.2d 172, 178 (1951). The judgment of the court of civil appeals is reversed, and the cause is remanded to that court.


author: PRESLAR, Chief Justice. OSBORN, Justice, PRESLAR, Chief Justice. OSBORN, Justice,

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Mary E. STODGHILL, a widow, Individually and as next friend for minor children, Daniel T. Stodghill, et al., Appellee.
    No. 6670.
    Court of Civil Appeals of Texas, El Paso.
    June 7, 1978.
    Rehearing Denied Aug. 2, 1978.
    Shafer, Gilliland, Davis, Bunton & McCol-lum, Inc., Connell Ashley, Tryon D. Lewis, Odessa, for appellant.
    Warren Burnett, Associated, Warren Burnett, Richard J. Clarkson, Odessa, for appellee.
    Strasburger & Price, Royal H. Brin, Jr., Dallas, for amicus curiae Alliance of American Insurers.
   OPINION

PRESLAR, Chief Justice.

This is a worker’s compensation case involving a question of whether an injury suffered in the course of employment was a producing cause of death. Based on a jury verdict, judgment was ‘ entered for the Plaintiff. We reverse and render.

The deceased, Thomas Stodghill, suffered an injury while working on a drilling rig when he fell some fifteen feet off the rig floor. This injury occurred on April 26, 1974, and his injuries consisted of a fracture of the right wrist, acute lumbosacral strain, bruise and contusion of the right hip and right elbow, and possible cerebral concession. He was hospitalized by Dr. Edwin E. Franks for four days and returned for treatment on three occasions on May 7, 20, and 28. During that period of time, he showed general improvement with treatment continuing for pain and discomfort in his back, right arm and wrist, and blood pressure. On June 12th at home, his wife found him slumped over in his chair; he was rushed to the hospital emergency room where he was pronounced dead with the cause of death being listed as myocardial infarction.

Appellee sought death benefits under the Worker’s Compensation Act on the basis that the injuries suffered in the fall at the rig caused or aggravated a hypertension condition which caused a heart attack and death. In response to special issues, the jury found: (1) that he suffered a heart attack, and (2) that the accidental injury was a producing cause of his death.

Appellant has points of error challenging the legal sufficiency and factual sufficiency of the evidence to support the jury finding that the accidental injury was a producing cause of death. The proof of the cause of death rests on the testimony of two medical doctors: Dr. Franks, who treated the deceased, as noted above, and Dr. Pazos, who had never seen nor treated the deceased, but who testified after a review of the medical records of Dr. Franks and the hospital. For the test on reviewing the evidence as to causation, we quote from Parker v. Employers Mutual Liability Insurance Company of Wisconsin, 440 S.W.2d 43, 46 (Tex.1969):

“In Texas, expert medical testimony can enable a plaintiff’s action to go to the jury if the testimony is that there is a ‘reasonable probability’ of a causal connection between an act and a present injury. Galveston H. & S. A. Ry. Co. v. Powers, 101 Tex. 161, 105 S.W. 491, 493 (1907).
“In Insurance Co. of North America v. Myers, 411 S.W.2d 710 (Tex.Sup.1967) the substance of the doctor’s testimony was that it was only a possibility that the injury caused the death, not that it was or was not a reasonable medical probability. In denying recovery in that case we held: ‘Causal connection * * * must rest in reasonable probabilities; otherwise, the inference that such actually did occur can be no more than speculation or conjecture.’ 411 S.W.2d 710, 713.”

Dr. Pazos testified that, from the fact that the record showed that the man had been suffering from essential hypertension, the injuries which he received on the job “could aggravate the progress, and trigger final complication to the hypertension.” He was then asked:

“Q. Now, I want to talk to you about that. I am going to ask you to assume with me, doctor, certain things to be true. Assume that after the period in the hospital that you have read about, as shown in Plaintiff’s Exhibit 2; assumed [sic] that he was at home, and that from time to time he would complain of indigestion, that he would, from time to time, swell or get puffed or bloated as his family had not seen him do before; that he was worried about going back to work, being able to go back to work, and finally on the 12th of June, he complained of indigestion and shortly thereafter had to be taken to the hospital where he was pronounced dead, and then assume that Plaintiff’s Exhibit No. 1, [death certificate] shows what happened at the hospital—
* * * * * *
“Q. Now assume all of those things to be true. Assume that is what happened to him. Now, if that was the course of his treatment, and if he had the hypertension and had the kind of injury that he received on April 26, is there any question in your mind but what the injury trig-gened or aggravated the hypertension?”

Following an objection which was overruled, he was then asked:

“Q. Do you have any doubt but what the injury triggered or aggravated the hypertension?
“A. Yes, it did.”

He then testified that medical books and authorities taught that the stress of bodily injury aggravates arterial hypertension, and that the type of injury this man had received would probably create physical and mental stress. He was then asked:

“Q. If you assume the things that show in the record, and that I have asked you to assume about his history, is there any question in your mind but what the injury that he got in April hastened his death?
* * * * * *
“THE WITNESS: I have a strong belief that a man that has been injured, a man of this age, 49 years old with a previous history of arterial hypertension, and had been involved in an accident, any kind of accident which produced a bodily injury, will trigger any' complication in hypertension, and basis — and the cause of death or death. The same thing that could be if a heart failure, could be renal failure, a blood clot, miocardial [sic] infarction; anything could be the fault, of it, but the main thing here, the man was injured, and that injury could produce probably some kind of shortening of the life span.”

Dr. Franks testified that Mr. Stodghill had a previous history of signs and symptoms of hypertension but had never been diagnosed or treated for such, and that the hypertension which he found was of unknown cause or origin. He was asked, “if a person has hypertension, stress can kill a person, can’t it?” And he answered, “It can.” He testified that the accident itself caused an initial elevation of blood pressure but that it subsided to normal with treatment; that a later elevation of blood pressure was due to the hypertension which he had previously suffered; that he did not think that the hypertension was related to the injury in question; and that on the patient’s last visit, he increased his medication for hypertension. On the direct point of heart attack causation, Dr. Franks was strongly of the opinion that the injury did not cause the heart attack. He was asked:

“Q. Doctor, do you feel, or from your hospital records; from you having seen the patient, or your patient, Mr. Stodg-hill, I will assume three times after the time he was discharged from the hospital, do you think, assuming that he did have a heart attack on June 12th, of 1974, do you think that heart attack could have been produced in any way, or was produced in any way by any matter related to hypertension from the accident?
“A. It could not.
“Q. From the accident?
“A. Not from the accident.
“Q. Do you think it could have had any relation to the accident of April 26th of ’74?
“A. Who knows? I don’t. I can’t — I have my own opinion, but then I can’t back that. I don’t know.
“Q. What is you medical opinion?
“A. My medical opinion is that the heart attack had nothing to do with his accident that he had. That is my medical opinion.”

At another point he was asked:

“Q. Do you think — it is in evidence that on the 12th day of June, of ’74, Mr. Stodghill died. Do you think that his death, the fact that he did in fact die of a heart attack, if in fact he did die of a heart attack, have anything to do relating to the accident of April 26?
“A. No.”

And, again, in response to another question as to whether the heart attack had anything to do with the accident of April 26th, he responded:

“A. I don’t think that the accident on April 26, caused this man to have a mio-cardial [sic] infarction. Does that answer it another way?”

We are of the opinion that Appellant’s Point of Error No. 4, that there is no evidence to support the jury’s finding that the accidental injury suffered by Thomas J. Stodghill on April 26,1974, was a producing cause of his death, must be sustained. The cause of Mr. Stodghill’s heart attack is a question of science determinable only from the testimony of medical experts and must be founded on reasonable probability. Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.1966); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). To meet her burden that Mr. Stodghill’s death arose out of his employment, Appellee seeks to prove that the fall which her husband suffered on the job caused the heart attack which occurred some 47 days later. The two medical experts did not state as their medical opinion that the heart attack was, in fact or in reasonable medical probability, caused by the prior on-the-job injury. Under such circumstances, we must reverse the judgment of the trial Court and render judgment that Appellee take nothing.

OSBORN, Justice,

concurring.

I concur in the reversal, but rather reluctantly in the rendition. The Appellant’s brief presents nine points of error. Every point begins “The Trial Court erred in Overruling the Appellant’s Motion for New Trial on the ground that * * *,” and then specifies the asserted error. A motion for new trial seeks just that, a new trial; but in this ease, sustaining a point of error complaining about overruling a motion for new trial results in a rendition! This bothers me and undoubtedly will shock counsel for the Appellee.

It should be noted that the Appellant did file a motion for judgment n.o.v. and there asserted that there is no evidence to justify a finding of the causal connection between the injury and the death of the deceased. The argument in support of the point sustained may be a “no evidence” contention. It states in part:

“ * * * The cause of death was myocardial infarction. The only testimony was that myocardial infarction is related to arteriosclerosis. There is no evidence that this disease resulted from hypertension.
“Thus the Appellee’s testimony, considered alone, was insufficient to support any jury verdict. Taken in connection with testimony of Dr. Franks, the Appel-lee’s contentions were totally disproved.”

At least, the only case cited, Webb v. Western Casualty and Surety Company, 517 S.W.2d 529 (Tex.1974), is a “no evidence” case. The Prayer at the end of the brief did ask that the judgment be reversed and rendered, and, alternatively, a remand for a new trial.

This Court has followed the dictates of the Supreme Court and looked beyond the point of error to the argument to determine the issue presented. We have followed the language in Airway Insurance Company v. Hank’s Flite Center, Inc., 534 S.W.2d 878 (Tex.1976), that a prayer for rendition, with a proper procedural basis therefor, usually indicates that the complaint relates to a “no evidence” point.

But in doing all of this, we have rendered the point of error which we sustained meaningless. We have also placed ourselves in direct conflict with the statement in French v. Brodsky, 521 S.W.2d 670 (Tex.Civ.App.—Houston [1st Dist.] 1975, writ ref’d n.r.e.), that “if the point of error in the brief is directed only to the asserted error of court in overruling motion for new trial, the appellate court can only remand and cannot render the case if the point is sustained.”

Part of the problem results from Appellant’s counsel’s failure to comply with Rule 418(b), Tex.R.Civ.P., which, at the time these briefs were filed in 1977, required a showing that the point was germane to an assignment of error. This is a recurring problem in many cases. See Thomas v. Morrison, 537 S.W.2d 274 at 281 (Tex.Civ.App.—El Paso 1976, writ ref’d n.r.e.). Had the point shown to have been germane to a motion for judgment n.o.v., then the Appel-lee and this Court would have been alerted to a “no evidence-rendition” point. Had it been shown to be germane to an assignment in the amended motion for new trial, everyone would have known it was a “remand” point. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.1968).

Realizing the requirements of Rule 1 for a liberal construction of all rules and the reasoning behind the results in Fambrough and O’Neil, it must be noted that every “liberal construction” which aids an appellant in obtaining a reversal necessarily makes it more difficult for the appellee to obtain an affirmance. In this case, where every single complaint in the points of error was with regard to overruling a motion for new trial, was Appellee alerted to a possible rendition? Obviously so under the cases noted in the footnote, but not from the points of error.

If points of error are to be meaningless, then perhaps we should do as we have done with motions for new trial, and no longer require them as a part of the appellate process. Another alternative is to consider only the points presented on appeal, and only consider those points which are now properly referenced to the record under Rule 418(d). Let us enforce the rules as written or not have the rules!

It is submitted that Courts reviewing cases on appeal should be able to expect that attorneys will properly assign errors for appeal in a motion for new trial and write artfully drawn points of error asserting the complaint they expect the appellate Court to review. But, obviously, the trend is in the other direction, i. e., abolishing the notice of appeal, doing away with motions for new trial, eliminating the need to designate the instruments in the transcript, and making points of error meaningless. It would seem that every effort is made to provide for appeals by laymen, and not those in a profession.

ON MOTION FOR REHEARING

PRESLAR, Chief Justice.

Appellee, in her motion for rehearing, contends that this Court has no jurisdiction to render upon a point of error germane to the overruling of a motion for new trial. Under Rule 434, Tex.R.Civ.P., we are to render the judgment that the trial Court should have rendered, and that includes rendition, unless there is something further to be determined in the trial Court which requires a remand. All procedural steps have been taken which make rendition of this ease in order in this Court.

The points of error in this Court are specific and in proper form. Point of Error No. 1 is that there is “no evidence to support the jury answer to Special Issue No. 1, which Issue inquired as to whether or not the deceased had a heart attack on June 12, 1974.” That is followed by Point of Error No. 2 that, as to the same issue, the finding is contrary to the great weight and preponderance of the evidence. Point of Error No. 3 is that the evidence is factually insufficient to support the jury finding as to Special Issue No. 1. Point of Error No. 4, on which this Court based its decision, is:

“The Trial Court erred in Overruling the Appellant’s Motion for New Trial on the ground that there is no evidence to support the jury’s finding that the accidental injury suffered by Thomas J. Stodghill on April 26, 1974 was a producing cause of his death.”

The prayer for relief is first that we render, or, in the alternative, that we remand.

Each point of error starts with “The Trial Court erred in Overruling the Appellant’s Motion for New Trial * * We see nothing wrong with this since at the time this case was tried the rules required that, in a case tried to a jury, there must be a motion for new trial and the appeal is taken from the order overruling that motion. We see nothing misleading about that recitation when the substance of the point of error is then set out to be very clearly that there is no evidence to support the jury finding. Appellee was not misled by it; in fact, Appellee responded to it, and the case was tried on that basis by the parties and decided on that basis by this Court.

In its motion for new trial, Appellant had an assignment of error “That the trial court erred in failing to grant the Defendant’s motion for Judgment notwithstanding the answers of the jury to the charge of the Court for the reasons therein stated.” Appellee says this is too broad a point to be considered by the Court and cites this Court’s opinion in Guernsey Community Federal Credit Union v. Gonzalez, 539 S.W.2d 896 (1976, writ ref’d n.r.e.). In that case, we refused to consider a point of error which simply said that the trial Court erred in failing to grant the defendant’s motion for an instructed verdict. That was a point of error on appeal before this Court. Appellant is here attempting to complain of an assignment in the motion for new trial before the trial Court. Whether the assignment was too broad or not was a matter for the trial Court’s consideration, and it overruled the motion for new trial. As noted, the points of error before this Court are clear and proper in their form.

Additionally, Appellant preserved the right to rendition by a Motion for Directed Verdict, as well as its Motion for Judgment Notwithstanding the Verdict. It followed up in its Amended Motion for New Trial with specific separate paragraphs complaining of no evidence to support certain jury findings, including one that “ * * * there is no evidence to support the jurys [sic] finding that the accidental injury suffered by Thomas J. Stodghill on April 26, 1974 was a producing cause of his death.”

The motion for rehearing is overruled.

OSBORN, Justice,

Concurring on Motion for Rehearing.

I concur in the overruling of the motion for rehearing, but for different reasons. I agree with the Appellee that the point of error which has been sustained has not been properly assigned in the motion for new trial as an assignment which can form the basis for a rendition. Assignment of Error No. 10 asserts: “That the trial court erred in failing to grant the Defendant’s motion for Judgment notwithstanding the answers of the jury to the charge of the Court for the reasons therein stated.” This assignment, which purports to refer to the motion for judgment n.o.v., is not sufficient. Wargner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960); W. T. Grant Company v. Key, 433 S.W.2d 163 (Tex.1968). No other complaint is made in the amended motion for new trial with regard to the overruling of the motion for judgment n.o.v., and no complaint is made with regard to the overruling of the motion for instructed verdict.

Assignment of Error No. 5 does complain that there is no evidence to support the jury’s finding that the accidental injury was a producing cause of Mr. Stodghill’s death. That assignment could only serve as a basis for a remand of the case and not a rendition. J. Weingarten, Inc. v. Razey, 426 S.W.2d 538 (Tex.1968). Certainly, a “no evidence” point may be raised for the first time in a motion for new trial, but such an assignment may only serve as a basis for a remand and not a rendition. Rosas v. Shafer, 415 S.W.2d 889 (Tex.1967); Jeter v. Montfort, 561 S.W.2d 622 (Tex.Civ.App.—Beaumont), rev’d on other grounds, 567 S.W.2d 498 (Tex.1978); Gillespey v. Sylvia, 496 S.W.2d 234 (Tex.Civ.App.—El Paso 1973, no writ); State v. Wilson, 439 S.W.2d 134 (Tex.Civ.App.—Tyler 1969, no writ).

But the Appellee has raised this challenge to the point of error which the Court sustained for the first time on motion for rehearing. We considered a similar complaint in Thomas v. Morrison, 537 S.W.2d 274 (Tex.Civ.App.—El Paso 1976, writ ref’d n.r.e.), and concluded that where the complaint was raised for the first time on motion for new trial, it comes too late and is waived for failure to timely raise the issue. For that same reason, I concur in the overruling of the motion for rehearing in this case.

      . See Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943); Brazos River Authority v. City of Graham, 163 Tex. 167, 354 S.W.2d 99 (1961); O’Neil v. Mack Trucks, Inc., 542 S.W.2d 112 (Tex.1976).

      . I recognize that I may not be totally objective about this matter, because I have never understood how a point of error complaining that “The Trial Court erred in granting the Motion for Summary Judgment” directs the attention of the Court to the error relied upon. See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119 (Tex.1970); Guerrero v. American Employers Insurance Company, 520 S.W.2d 560 (Tex.Civ.App.—El Paso 1975, no writ). In McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643 (1957), the Court noted that a point so general as to encompass any and every error committed by the trial Court means nothing. In Missouri-Kansas-Texas Railroad Company v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956), the Court noted that Rule 418 requires that the point of error refer to the particular error relied upon.


author: WARD, Justice.

text:
    C. H. LEAVELL AND COMPANY et al., Appellants, v. The LEAVELL COMPANY, Appellee.
    No. 6773.
    Court of Civil Appeals of Texas, El Paso.
    June 21, 1978.

      Shank, Irwin, Conant, Williamson & Gre-velle, Alen Weed, Dallas, for appellants.
    Kemp, Smith, White, Duncan & Hammond, William J. Derrick, E. Link Beck, El Paso, for appellee.
   OPINION

WARD, Justice.

This appeal is from the granting of a temporary injunction issued as ancillary relief in a suit for damages for breach of contracts. We will reverse.

In May of 1976, the construction business known as C. H. Leavell and Company entered into a stock purchase agreement with Sarkisian Brothers, Inc. Pursuant to the stock purchase agreement, C. H. Leavell and Company formed a wholly owned subsidiary called Leavell Construction Company to which it transferred the C. H. Leavell and Company’s assets used in its construction operations. C. H. Leavell and Company then changed its name to The Leavell Company. The stock in the subsidiary, Lea-vell Construction Company, was transferred to Sarkisian Brothers, Inc., and Leavell Construction Company then changed its name to C. H. Leavell and Company. Thus, the construction operations and business were thereafter owned and operated by a new corporation known as C. H. Leavell and Company, a wholly owned subsidiary of Sarkisian Brothers, Inc. The Leavell Company, or “Leavell,” then entered into two further agreements known as the management agreement and the consulting agreement with the new C. H. Leavell and Company, which will be referred to as “CHL.” Performance under these two contracts was guaranteed by Sarkisian Brothers, Inc., hereinafter referred to as “SBI,” and its parent corporation, Sarkisian Brothers Holding Company, hereinafter referred to as “SBHC.”

Under the management agreement, CHL agreed to manage the operations of certain construction projects which Leavell had contracted for prior to the sale of the construction operations. The management agreement provided that CHL was to manage these projects on behalf of Leavell and to collect funds for Leavell’s account, but there was no assignment made of these contracts to CHL. Further, the agreement obligated CHL to maintain on Leavell’s behalf all files and records and to deliver the files, books of accounts, and records to Lea-vell upon completion of the contracts. The agreement specifically provided for compensation to CHL and Leavell. CHL was to collect and keep 33⅛ percent of the actual aggregate pre-tax net profits as defined in the management agreement. Leavell was to be compensated with the remaining amount of the pre-tax net profits on each of the contracts at a time and on a formula as set out in the agreement.

Under the terms of the consulting agreement, Leavell, in exchange for an agreement to provide consulting services to CHL, was to receive compensation based on a formula contained in that agreement.

At the time of these transactions, eight construction projects were then in progress and came under the terms of both the management and consulting agreements.

The evidence produced at the hearing for the temporary injunction was undisputed and consisted of three witnesses offered by Leavell and copies of the contracts and correspondence between the parties and others. Leavell established that immediately following the execution of the contracts, Leavell began experiencing payment problems with CHL. Payments were at first late and then, following a payment in October, 1976, no further payments were made to Leavell. Excuses were offered to Lea-vell that miscalculations had been made and that CHL had paid more than was due under the contracts. CHL was obligated under the contracts to provide monthly calculations for Leavell, and these ceased, but at one time it promised to provide quarterly calculations. After May, 1977, the Defendants consistently ignored or disregarded all requests for payment or information from Leavell.

Leavell had received the sum of $275,-000.00 under the management agreement and calculated that through December 31, 1977, there was due an additional sum of about $156,000.00 under that agreement and about $15,000.00 due and unpaid under the consulting agreement. By the spring of 1978, four of the eight contracts subject to the management agreement had been fully completed, but CHL had failed to forward to Leavell the books and records of those projects in violation of the terms of the management agreement. At the time of the hearing on the temporary injunction, only two of the projects were still in the process of being built, two more having been completed but subject to final billing and collection.

Demands for performance and information having been ignored, Leavell notified the three Defendants that all authority granted to CHL by Leavell under the management agreement to act on Leavell’s behalf was revoked. Simultaneously, the owners of the two projects under construction and the two projects which were subject to final billing and collection were notified of the revocation of authority. CHL immediately contacted the owners of the projects and threatened litigation if any payments were made to Leavell. Prior to that notice made by Leavell, the owners had made payments to CHL without problems, and, as far as disclosed, without knowledge that there had ever been any transfer of real ownership in the project management.

On March 16, 1978, SBI filed suit in the United States District Court for the Northern District of Texas seeking, among other things, the right to an offset provided for in the stock purchase agreement, alleging that because of that it had the right to refuse to make payments under the terms of that agreement, the management agreement, or the consulting agreement. It was on the next day that The Leavell Company filed the present suit in the District Court of El Paso County. There it alleged that the Defendants had breached their contracts, that it was entitled to damages, cancellation of the contracts, an accounting, and, as ancillary thereto, a temporary injunction.

At the conclusion of the hearing appealed from, the trial Court issued its temporary injunction which: (1) compelled the three Defendants, CHL, SBI and SBHC, to direct the owners of the four projects not fully completed to make all payments then due or thereafter due under the contracts to The Leavell Company, notices to the four owners to be made no later than April 28, 1978; (2) compelled the Defendants, CHL, SBI and SBHC, to pay to The Leavell Company, no later than April 28, 1978, any and all monies then held by those Defendants which had been paid to them previously by the owners of all eight of the original contracts; and (3) restrained and enjoined the three Defendants, their officers, agents, servants, employees and attorneys from interfering with, participating in, or dealing in any manner with the four projects not completely finished.

The Defendants on this appeal assign five points of error to the effect that the order does set forth the reasons for its issuance as specifically as required by Rule 683, Tex.R. Civ.P.; that the order does not preserve the status quo pending hearing on the merits; that the order is invalid as the trial Court abused its discretion because there was no evidence to show any threat of immediate and irreparable injury, nor the absence of an adequate remedy at law in favor of the Plaintiff; and, finally, that the petition was not properly verified.

The parties agree on the settled rules regarding temporary injunctions that the trial Court has broad discretion in its determination of whether to issue a writ of temporary injunction, and that its order should be reversed only when an abuse of discretion is shown; that the applicant for the relief generally must show a “probable right” and “probable injury;” and that the only question before the Court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits, the status quo to be preserved by temporary injunction being the “ ‘last, actual, peaceable, noncontested status which preceded the pending controversy.’ ” Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953). Principles of equity govern all forms of injunctive relief, including the granting of a temporary injunction. In this case, where the principal dispute between the parties is over the terms of a contract and its possible breach, the absence of an adequate remedy at law is essential, and unless such is shown the writ will not issue. Hill v. Brown, 237 S.W. 252 (Tex.Com.App.1922). It is sometimes said that there must be a finding of irreparable injury, although, as has been explained, the term is somewhat of a misnomer. 6 Texas Prac. (Lowe) Sec. 113 and 114 (1973).

In the instant case, the order granting the temporary injunction set forth the following reasons for its issuance:

“ * * * that TLC established that it probably will suffer irreparable harm before final hearing on the merits can be had unless Defendants are restrained, and it further appearing to the Court that the actions of CHL in contacting and threatening litigation against the owners of the contracts hereinafter designated were intentionally designed to cause harm to TLC and will result in harm to the owners and subcontractors, thus justifying a mandatory injunction * *

While the generalization made in the first part of the quoted material was not sufficient, we believe that the balance of the quoted material was a sufficient compliance with the requirements of Rule 683. Transport Co. of Texas v. Robertson Transports, Inc., supra at 553, 261 S.W.2d 549; Charton Corporation v. Brockette, 534 S.W.2d 401 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.). The order setting forth the reasons could have been more specific and certainly more relevant to the acts enjoined, but being sufficient, we overrule the first point.

In our opinion, however, there are more serious defects present. The Plaintiff, while engaging in some eight construction projects, undertook through the series of contracts described to dispose of its direct participation in those eight contracts and, for certain valid reasons, did so without executing any assignment of those contracts. As a consequence, on each construction project, a new corporation, the “C. H. Leavell and Company,” with new owners but bearing the identical name to the old contractor, took over the general management of the eight construction projects, making all payments and collecting all amounts due under the contracts. This was all done apparently without disturbing the progress in the construction and, as indicated and suggested by the evidence, without the knowledge of the project owners or of the project subcontractors. No criticism is to be implied by this statement. We point out that this status was created on June 1,1976, and then continued peacefully and undisturbed until March, 1978, by which time four projects had been completely disposed of, two were in the last stages, and two were unfinished. During all of this period of time, the Defendant CHL performed its necessary duties as general contractor, the owners made their payments to the Defendant CHL, and the Defendant CHL in turn made the necessary payments to the subcontractors. Clearly, the last actual, peaceable, noncontested status which preceded the pending controversy in this cause was that of CHL operating under the terms of the management agreement without interference from the Plaintiff. Although the Plaintiff was justified in acting to protect its own interests, it disturbed the status when it wrote its letters of revocation on March 17, 1978, which first notified the owners of each of the four remaining projects of the existence of the management agreement between Leavell and CHL, of the name change of Leavell, of the conflict between Leavell and CHL, and that payments should be made to Leavell from then on. Regardless of its justifiable concern over the lack of payments, lack of reports, and the failure to furnish the records which the Plaintiff may have had, the overall status quo of the projects was disturbed by the granting of the injunction and the entry of the order compelling the Defendants to notify the owners to pay this new corporation, the Plaintiff, all sums due or to become due under the projects and prohibiting the various Defendants from participating or dealing in any manner with the projects. State v. Southwestern Bell Telephone Company, 526 S.W.2d 526 (Tex.1975); Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Houck v. Kroger Co., 555 S.W.2d 803 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n. r. e.). The Defendants’ second point is sustained.

Ordinarily, contractual rights will not be enforced by writs of injunction except in unusual circumstances, since an adequate remedy at law is usually available through a suit for damages. 6 Texas Prac. (Lowe) Sec. 16 (1973). No exceptional situation has been shown. The main suit was simply a suit for damages and accounting, and no proof has been offered as to the financial condition of any of the Defendants, and, as previously pointed out, the ancillary remedy asked for did not preserve the status quo.

This points up the next two complaints made by the Defendants, which essentially are that there has been no proof of the absence of an adequate remedy at law. The Plaintiff’s president testified that not only was the Plaintiff due some $170,000.00, but his real concern was that the subcontractors on one of the projects in Oklahoma might not be paid, and that this amounted to over $800,000.00. He stated that he did not feel that he could rely on the Defendants to pay the subcontractors; and that if the retainage from the Oklahoma project was not released to the Plaintiff, the Plaintiff would then have to borrow the money to pay the subcontractors or face a suit on their performance bond, and this would result in stopping the Plaintiff from doing anything further in its business activities.

There is no evidence that the Defendants have failed as competent contractors in the construction of the various projects, nor that they have at any time failed to pay any subcontractor, nor that they would fail to pay the subcontractors, nor that they are insolvent. Under these facts, Leavell has failed to establish that it does not have an adequate legal remedy or that it will suffer irreparable injury. “Irreparable injury” is stated to be “ ‘an injury of such nature that the injured party cannot be adequately compensated therefor in damages, or that the damages which result therefrom cannot be measured by any certain pecuniary standard.’” 6 Texas Prac. (Lowe) Sec. 114 (1973). As far as the evidence shows, an adequate remedy at law did exist and the extraordinary remedy of a temporary injunction should not have been granted. Gihls Properties, Inc. v. Main Lafrentz & Co., 542 S.W.2d 203 (Tex.Civ.App.—El Paso 1976, no writ); Great American Mortgage Investors v. Republic of Texas Savings Association, 538 S.W.2d 146 (Tex.Civ.App.—Houston [14th Dist.] 1976, no writ); Allied Bank of Texas v. Preissman, 532 S.W.2d 699 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.).

We have sustained the Defendants’ second, third, and fourth points. We do not reach the last point. The order of the trial Court is reversed and the temporary injunction is dissolved.


author: OSBORN, Justice.

text:
    The CITY OF EL PASO et al., Appellants, v. The STATE LINE, INC., Appellee.
    No. 6752.
    Court of Civil Appeals of Texas, El Paso.
    June 28, 1978.
    Rehearing Denied Aug. 2, 1978.

      Philip T. Cole, El Paso, for appellants.
    Kemp, Smith, White, Duncan & Hammond, William J. Derrick, W. Royal Furge-son, Jr., E. Link Beck, El Paso, for appellee.
   OPINION

OSBORN, Justice.

This appeal, from the granting of a permanent injunction, involves the right of a publicly owned utility company to refuse water service to a party who seeks such service beyond the boundaries of both the City and the State. The City of El Paso owns and operates El Paso Water Utilities which provides water and sewer service to both the residents and some non-residents of the City of El Paso. See Article 1108, Tex.Rev.Civ.Stat.Ann., and El Paso City Charter, Section 92. The State Line, Inc., operates a restaurant located on leased land which lies both in Texas and New Mexico. The Utilities Board denied water service to the restaurant operator because the building where the kitchen is located and the water is to be used is in New Mexico. When Appellee connected onto an existing line in Texas, the manager of the Utilities threatened to disconnect service to the existing line. Appellee then obtained a permanent injunction to prevent any disruption of water service. We affirm.

The rules and regulations of the Utilities Board state that service may be provided to property outside the corporate limits of the City. In 1972, the Utilities manager prepared and delivered to his staff an “Operational Policy” with regard to property located in New Mexico. It states:

“1. Water and sewer service may be provided to property in New Mexico when a portion of the property is adjacent to the water main from which service will be provided and when one of the following two conditions prevail:
“(1) When the property to be served is a normal size lot for the area and one-half or more of the lot is within the State of Texas.
“(2) When some portion of the building to which service is to be provided lies within the State of Texas.”

Mr. A. J. Needham owns the property in question which he has leased to the Appel-lee Corporation. Most of the leased premises is in Texas, but a part is in New Mexico. The premises contain three basic buildings, one of which is in Texas and has been subleased back to Mr. Needham for his use. The two larger buildings which are used for the restaurant are located in New Mexico. Most of the property in Texas is used for a parking lot next to the restaurant.

In 1973, Mr. Needham applied for and obtained water service to that part of the leased premises on which the small building now subleased to him is located. He paid all frontage and installation costs for this service. There were no connections or lines to provide water to the buildings in New Mexico where the restaurant is now located. In 1977, Mr. Needham leased the entire tract consisting of 1.8784 acres to Appellee for five years. The State Line, Inc., then applied for water service to the two buildings which had no water connection. Representatives of the proposed restaurant appeared before the Utilities Board on January 11, 1977, and their application was tabled for two weeks. On January 25, 1977, the Board voted to deny the application. The application was reconsidered on February 23,1977, and again denied. The Appel-lee then had service on the waterline obtained by Mr. Needham in 1973 transferred to its name, and then the Appellee proceeded with plans to open a restaurant and, without any authority, installed a waterline from the connection obtained by Mr. Needham on the Texas property to the buildings located in New Mexico. When the Utilities manager advised that service would be disconnected because of the line into New Mexico, this case resulted and the injunction enjoined the disruption of water service.

The Appellee established at the injunction hearing that the City does provide water service to approximately twenty customers in New Mexico. Most of these customers were originally provided service by the White Water Works, an independent system which the City acquired in 1955, and service has been continued by the City since that time. But several other customers were added in the 1960’s and several in the 1970’s. In 1962, the City made a contract to provide water service to El Paso Brick Company at its plant in New Mexico, and prior to that, in 1958, a special contract provided water service to the U.S. Government at the McGregor Range located mostly in New Mexico. Then, in 1974, a special contract provided water for the use of the residents of Colonia Escondida Development in Texas at a swimming pool located completely in New Mexico. All of these twenty or so customers still obtain water from the City of El Paso.

The testimony reflects that the application for service in this case was refused because of a desire upon the part of the Utilities Board to conserve water for residents within the City and an effort to prevent the use of water in New Mexico where the City and State have no control over use and development in the area. This is obviously a worthwhile goal for these valued public officials.

But the Court in City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622 (1952), set forth the guidelines which must control the disposition of this case. In that decision, the Court was concerned primarily with utility rates, but it also discussed service as well. The Court, in its opinion, said:

“The common-law rule that one engaged in rendering a service affected with a public interest or, more strictly, what has come to be known as a utility service, may not discriminate in charges or service as between persons similarly situated is of such long standing and is so well recognized that it needs no citation of authority to support it. The economic nature of the enterprise which renders this type service is such that the courts have imposed upon it the duty to treat all alike unless there is some reasonable basis for a differentiation. * * *
“It is settled in this state that the petitioner, upon the purchase by it of the property of the privately-owned utility, was subject to this same rule prohibiting unreasonable or unjustified discrimination in rates and service. * * *
“ * * * in the absence of (1) a showing that the discrimination has a reasonable basis or (2) a statute to the contrary, a municipality may not discriminate in charges or service as between those similarly situated. * * * The real reason for the rule that, in so far as treatment of consumers is concerned, the municipally-owned utility is no different from the privately-owned utility is that the economic nature of the business has not changed; it remains a monopoly in spite of the change in ownership.”

That holding was followed in State v. City of Houston, 270 S.W.2d 235 (Tex.Civ.App.—Galveston 1954, writ ref’d n. r. e.), where the Court noted that where the City furnished water to residents previously outside the City, its obligation was “to furnish water without discrimination to all others similarly situated.” Also see: City of Galveston v. Kenner, 111 Tex. 484, 240 S.W. 894 (1922).

In City of Big Spring v. Board of Control, 389 S.W.2d 523 (Tex.Civ.App.—Austin 1965), aff’d, 404 S.W.2d 810 (Tex.1966), the Court pointed out the prohibition against discrimination in the selection of those to be served and said:

“A City owning or operating a waterworks is under no duty to furnish water to persons residing beyond the corporate limits. City of Livingston v. Wilson, 310 S.W.2d 569, Beaumont C.C.A., writ ref., n. r. e. It may do so, however, upon such terms ‘as may appear to be for the best interest of such town or city’ (Sec. 3, Art. 1108) so long as it does not discriminate in so doing. (Wiggins)”

This case is cited with approval in 12 McQuillin Mun. Corp. (3rd Ed.), Sec. 35.35g (1970), which notes that a municipality owning a public utility has a duty to furnish service without discrimination even to users outside the City where the utility has undertaken to provide service to those so situated. To the same effect is the holding in Mayor and City Council of Cumberland v. Powles, 258 A.2d 410 (Ct.App.Md.1969), where the Court said:

“ * * * Having contracted to supply water to areas outside its corporate limits, the city must furnish water impartially to all those reasonably within reach of its system. * * * ”

In this case, we see several extensions of service to property located totally in New Mexico. At least Appellant does meet the first criterion of the Operational Policy adopted in 1972 because the leased premises consists of a normal size lot for the area and more than one-half of such premises is within the State of Texas.

By its first point, Appellant complains of the trial Court’s finding that the Board policy as to service in New Mexico is controlled by the 1972 Operational Policy. The manager of the Utilities testified that the staff tries to follow this Operational Policy where property is located in two states. And the Board members apparently rely upon staff recommendations, although continuing to exercise their own independent judgment. This policy, as found by the Court, was probably more restrictive than that actually implemented by the Board in other instances since it did at least require most of the property to be in Texas, whereas some of the customers had obtained water service even though all of their premises is in New Mexico. Finding no reversible error, the first point is overruled.

The next six points attack the Court’s findings that the property leased to Appellee comes within the Operational Policy. We consider these no evidence and insufficient evidence points under the standards set forth in Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). We conclude that the evidence establishes a compliance with Paragraph 1(1). The leased property is not only adjacent to a water main from which service can be provided, it already has an existing line and meter on the leased premises. The property to be served, being 1.8784 acres, is a normal size lot for the area, and Appellant does not contend otherwise. The evidence is conclusive from both testimony and plats that most of the leased premises is in Texas. Mr. Needham testified that 75 percent is in Texas and 25 percent in New Mexico. The plats reflect 1.5131 acres in Texas and .3653 acre in New Mexico. Points 2 through 7 are overruled.

The next two points attack the Court’s finding that commercial establishments situated wholly or partially within the State of New Mexico are persons similarly situated to Appellee. The proof establishes several commercial establishments, including a restaurant, a lounge, and a brick company, all in New Mexico, which receive water from El Paso Water Utilities. Certainly, they are similarly situated to Appellee, but they do not comply with the Operational Policy since they do not have most of their property in Texas. Appellant urges that no service has been extended to a commercial establishment since the Operational Policy in 1972, except for one exception which was made for the residents of Colonia Escondida. But the fact remains that when the new policy was established, service was not terminated to those commercial establishments located in New Mexico which did not meet the policy requirements. If all similarly situated are to be treated equally, the Utilities may not continue to provide service for some and deny it to others “similarly situated” in New Mexico. State v. City of Houston, supra. Points 8 and 9 are overruled.

Points of Error Nos. 10 and 12 are immaterial to the results in this case and need not be discussed further.

Point of Error No. 11 attacks Conclusion of Law No. 3 that Appellee is entitled to water service as an eligible patron paying the applied rates and following the applicable regulations. Mr. Needham testified that he paid $811.54 plus $477.18 for installation and frontage charges when the meter was installed in 1973. Mr. Tejeda, an engineering supervisor for the Utilities, testified that no additional charge would be added for service into New Mexico. The point is overruled.

Point of Error No. 13 asserts that the Court erred in finding Appellee had no adequate remedy at law and was entitled to injunctive relief to enjoin the unlawful discontinuance of existing water service to its restaurant. The restaurant opened for business in June, 1977. On July 5, 1977, the manager of El Paso Water Utilities wrote to the owner that service would be disconnected on July 22,1977. If Appellee did not obtain an injunction, its only alternative was to sue for damages. But where the loss of profits is too uncertain or speculative because the business is new or unestablished, the rule denying recovery for loss of profits would be enforced. Southwest Battery Corporation v. Owen, 131 Tex. 423, 115 S.W.2d 1097 (1938). Following that case, the Court, in Edwards v. Ward Associates, Inc., 367 S.W.2d 390 (Tex.Civ.App.—Dallas 1963, writ ref’d n. r. e.), said:

“ * * * It is well settled that anticipated profits from a business which had not been established at the time of the alleged breach are necessarily so speculative and remote that recovery thereof will not be allowed. * * * ”

Thus, in this case, if the injunction had not been granted, termination of water service would have caused the business to close very shortly after opening, and there would be no adequate remedy at law. The point is overruled.

Appellant next asserts error in the Court’s Conclusion of Law No. 7 that Ap-pellee was entitled to water service even if it was in violation of rules and regulations of the Public Service Board. Undoubtedly, Appellee extended lines to its leased premises in New Mexico without a permit and it paid no additional charges. But Mr. Tejeda said no additional charge was required for the service into New Mexico. While we do not condone the “self-help” rule by which Appellee obtained water for the buildings in New Mexico, neither can we approve of administrative rules which permit service to some commercial establishments located wholly in New Mexico, while denying service to one located mostly in Texas. Point of Error No. 14 is overruled.

The next three points of error complain of matters previously discussed and they are all overruled.

The next point asserts that Ap-pellee is not entitled to injunctive relief when it has not come into Court with clean hands. First, it must be noted that where the purpose of a suit is to test the validity of an order of an administrative agency, the unclean hands doctrine does not apply. Board of Insurance Com’rs v. Texas Employers Ins. Ass’n., 189 S.W.2d 47 (Tex.Civ.App.—Austin 1945), aff'd, 144 Tex. 543, 192 S.W.2d 149 (1946). In Norris of Houston, Inc. v. Gafas, 562 S.W.2d 894 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref’d n. r. e.), the Court noted that the doctrine of unclean hands does not operate to repel all sinners from a Court of equity and that it should not be applied when the defendant has not been seriously harmed and the wrong complained of can be corrected. Point of Error No. 18 is overruled.

The last point asserts that the trial Court erred in granting an injunction because Appellee has no constitutional right to be accorded water service in New Mexico. We agree that the utility has no obligation to furnish water in New Mexico or even outside the corporate limits of the City, but having chosen to serve some customers in those areas, it cannot, as the Court noted in the Bowles case, “be permitted to pick or choose” as to whom it will grant or refuse service. The last point is overruled.

The judgment of the trial Court is affirmed.

      . This is a reference to City of Texarkana v. Wiggins, supra.


author: CORNELIUS, Chief Justice.

text:
    Edwin G. DALE et ux., Appellants, v. Mildred STRINGER, Appellee.
    No. 8564.
    Court of Civil Appeals of Texas, Texarkana.
    July 5, 1978.
    Rehearing Denied Aug. 15, 1978.

      Woodrow Edwards, Mount Vernon, Joe W. Lovelace, Lovelace & Thompson, Inc., Linden, for appellants.
    William R. Porter, Daingerfield, for ap-pellee.
   CORNELIUS, Chief Justice.

Appellee, Mildred Stringer, brought suit in trespass to try title against appellants, Edwin G. Dale and wife, seeking to recover title to a 3.949 acre parcel of land in Cass County, Texas. Trial was to a jury which found that appellee and her predecessors had held adverse possession of the land under such circumstances as would mature title thereto by virtue of our ten-year statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5515. Mr. and Ms. Dale have appealed from a judgment rendered on the verdict vesting title to the disputed parcel in Ms. Stringer.

On November 15, 1950, Stringer purchased from Will Stewart and others, through the Veterans’ Land Board of Texas, a tract of land described as 129.75 acres in the Henry R. Latimer Survey of Cass County. The 3.949 acre tract in dispute, although included within the perimeter fences surrounding the 129.75 acre tract, was not included in the field notes of Stringer’s land as deeded to her. It is rather included in the description of Mr. and Ms. Dale’s land which joins Stringer’s tract, and it was undisputed at the trial that the Dales held the record title to the land in dispute. The evidence, however, viewed in the light most favorable to the jury verdict, showed that Will Stewart and his family had used the entire enclosed area, including the disputed 3.949 acre parcel, as a unit, farming the same and grazing cattle thereon each and every year from at least 1931 until 1950. When Ms. Stringer negotiated the purchase of the tract from Mr. Stewart, he took her and her father over the land, pointed out the supposed boundaries of the tract, and showed her the area that she was buying, including specifically the disputed acreage. To complete the purchase, the Stewarts on November 15, 1950, conveyed the 129.75 acre tract to the Veterans’ Land Board of Texas, which in turn entered into a contract of sale with Ms. Stringer covering the same described tract. Some ten years later, on February 25, 1960, Ms. Stringer received her deed from the Veterans’ Land Board after paying the purchase price in full. Neither the Stewart deed to the Veterans’ Land Board, nor the Veterans’ Land Board contract of sale with Stringer or its deed to her pursuant to said contract, described the disputed portion of land, but used only the original description of the 129.75 acres. From 1950, when Stringer received her contract of sale from the Veterans’ Land Board, until 1959 when she placed her land in the Soil Bank program, she maintained possession of and grazed cattle upon the entire tract claimed by her, through her tenants, her father and her brother, Kenneth Stringer. Shortly after Mr. and Ms. Dale purchased their tract in 1967, a dispute arose between them and Ms. Stringer over the ownership of the 3.949 acre strip in question here, which dispute culminated in Stringer’s filing suit. Although originally claiming record title, Ms. Stringer went to trial claiming title to the disputed 3.949 acres by virtue only of the Texas ten-year statute of limitations. Because she had placed the entire land claimed by her in the Soil Bank program in 1959, she could only show something less than nine years of adverse possession in her own right, and she thus attempted to “tack” the previous possession of the Stew-arts to hers in order to accumulate the required ten years. The jury answered “yes” to the following special issue:

“SPECIAL ISSUE NO. 1:
Do you find from a preponderance of the evidence that the Plaintiff, and those in privity of estate with her, either in person or through tenants, have held peaceable and adverse possession of the lands in controversy, under an enclosure, cultivating, using or enjoying the same, or any part thereof, for any period of ten consecutive years prior to its being placed in the soil bank program in 1959?”

To establish title by adverse possession under our limitation statutes, it is not essential that the possession be continuous in the same person for the statutory period; the periods of possession of two or more persons may be combined or “tacked.” Hutto v. Cook, 139 Tex. 571, 164 S.W.2d 513 (1942); McAnally v. Texas Co., 124 Tex. 196, 76 S.W.2d 997 (1934). But to do so, it must be shown that (1) the possession and claim of the claimant’s predecessors met all the requirements of the limitation statute; (2) the possession and claim of the claimant and those of his predecessors were continuous without interruption; and (3) the earlier occupant’s possession and claim were passed or transferred to the latter occupant by agreement, gift, devise or inheritance. 2 Tex.Jur.2d, Adverse Possession, Secs. 74, 75 and 76, pp. 153-159. Requirement No. 3 is but another way of stating that there must be privity of possession between the successive occupants. Hutto v. Cook, supra; Abramson v. Sullivan, 103 S.W.2d 229 (Tex.Civ.App. Austin 1937, no writ). And the transfer of such possession need not be by deed, but may be oral. McAnally v. Texas Co., supra; Abramson v. Sullivan, supra; Shuttles v. Butcher, 1 S.W.2d 661 (Tex.Civ.App. El Paso 1927, writ ref’d). As may be seen from the earlier statement of the evidence, Stringer’s proof met the requirements for tacking her possession to that of the Stewarts unless, as asserted by the Dales in their principal contention on appeal, the fact that legal title to Stringer’s described tract was in the State of Texas through the Veterans’ Land Board from 1950 to 1960 destroyed the required continuity or privity.

It is not privity of title but privity of estate or possession which constitutes an essential element of tacking. Hutto v. Cook, supra; McAnally v. Texas Co., supra; 2 Tex.Jur.2d, Adverse Possession, Sec. 74, p. 154. It is undisputed in this record that the Stewarts transferred their possession of and claim to the land enclosed within their fences to Stringer in 1950 when they agreed to sell the same to her through the Veterans’ Land Board. It was not necessary that Stringer receive legal title to the land in order to tack the Stewarts’ possession to hers. McAnally v. Texas Co., supra. Nor was it necessary for the Veterans’ Land Board, the holder of legal title, to have maintained adverse possession or claim to the land against the record owner. See Sterling v. Tarvin, 456 S.W.2d 529 (Tex.Civ.App. Fort Worth 1970, writ ref’d n. r. e.). Even if it can be considered that the Stew-arts transferred both their title and their right of possession to the Veterans’ Land Board, such would not defeat the required privity of estate. Although legal title was transferred to the Veterans’ Land Board, the equitable title vested contemporaneously in Ms. Stringer by virtue of her contract of purchase, and she was immediately placed in actual possession of the land. The conveyance to the Veterans’ Land Board was for her benefit, and in reality was only a means of financing her purchase of the land from the Stewarts. In such circumstances the intervention of the Veterans’ Land Board in the chain of title would not defeat the right of Ms. Stringer to tack her possession to that of the Stewarts. Sterling v. Tarvin, supra.

Nevertheless, under the finding of the jury and the undisputed evidence in this record, Ms. Stringer was not entitled to judgment. As previously noted, the jury found that Stringer and her predecessors had possessed, used and claimed the land in such a manner as complied with the requirements of the ten-year limitations statute. Because Stringer had less than nine years’ possession in her own right, the jury verdict necessarily included a finding that the Stewarts’ possession met the requirements of the statute. It was uncontrovert-ed that whatever the Stewarts did with reference to the land, they did it consistently and without interruption from the 1930’s until they sold it in 1950. Under the evidence in this record, the Stewarts either had no possession which complied with the statute, or they had more than 10 years possession which did comply with the statute. As stated by the court in Campbell v. Castle, 204 S.W. 484, 485 (Tex.Civ.App.Texarkana 1918, no writ):

“It appeared that, if the ten years’ statute of limitations had operated at all in Cross’ favor, it had operated long enough to perfect title in him.”

As the jury here must have found that the Stewarts’ possession complied with the statute, and as there was no evidence that the character of their use or claim ever changed, they necessarily matured title by limitations to the land in question prior to 1950. See Manning v. Humble Oil & Refining Co., 92 S.W.2d 577 (Tex.Civ.App. Beaumont 1936, writ ref’d); Webb v. Davant, 113 S.W.2d 926 (Tex.Civ.App. Texarkana 1937, no writ); Stevenson v. Barrow, 291 S.W. 1101 (Tex.Com.App.1927, holding approved); Kleckner v. McClure, 524 S.W.2d 608 (Tex.Civ.App. Fort Worth 1975, no writ); Collins v. Page, 129 S.W.2d 335 (Tex.Civ.App. Beaumont 1939, writ dism’d jdgmt cor.); Leonard v. Ramsey, 71 S.W.2d 606 (Tex.Civ.App. Texarkana 1934, writ dism’d); Campbell v. Castle, supra; Houston Oil Co. v. Gore, 159 S.W. 924 (Tex.Civ.App. Galveston 1913, writ ref’d).

When title by limitation has matured there is no further place for tacking. Webb v. Davant, supra. And the title so matured cannot be transferred orally, but can be conveyed only by an instrument in writing. Tex.Rev.Civ.Stat.Ann. art. 1288; Kleckner v. McClure, supra; Webb v. Davant, supra; Manning v. Humble Oil & Refining Co., supra; Campbell v. Castle, supra. Neither Stewart’s deed to the Veterans’ Land Board nor the Veterans’ Land Board’s deed to Ms. Stringer purported to convey the acreage involved in this suit. Although the oral transfer of possession from the Stewarts to Stringer would have been sufficient to tack unmatured adverse possession, it could not be effective to transfer a matured title which, according to the uncontroverted evidence and the jury findings, the Stewarts had already acquired in 1950. Houston Oil Co., v. Gore, supra.

Ms. Stringer contends that the question of a matured limitation title was a defensive issue and that the Dales had the burden to request and obtain a finding as to when the Stewarts’ possession began and ended. As indicated earlier, we believe that the undisputed evidence showed that, if the Stewarts had any adverse possession at all, they had it for more than 10 years prior to 1950, and consequently an issue thereon was not necessary. Be that as it may, it cannot be said that the Dales waived their complaint in that regard, because they objected to the failure to submit such an issue and they also requested the submission of such an issue in substantially correct language. See Tex.R.Civ.P. 279.

Mr. and Ms. Dale’s points of error in this Court do not specifically complain of the error relating to the lack of conveyance to Stringer of the matured adverse possession title of the Stewarts. Instead, their points complain generally of the lack of evidence or the insufficiency of the evidence to support a finding of tacking. But the matter is plainly contended for and argued in the Dale’s brief, and is ably answered in Stringer’s brief, and under our liberal briefing rules and in the interest of justice we have considered it. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).

The plaintiff in a trespass to try title suit must recover, if at all, on the strength of his own title, not on the weakness or lack of title on the part of the defendant. Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S.W. 902 (1924); 56 Tex.Jur.2d, Trespass to Try Title, Sec. 7, p. 70. As the undisputed evidence and the jury finding established that the Stewarts matured limitation title to the land in dispute prior to 1950, and such title was not lawfully conveyed or otherwise transferred to Ms. Stringer, a take-nothing judgment should have been rendered against her.

Mr. and Ms. Dale’s other point is not reached.

For the reasons stated, the judgment of the trial court is reversed and judgment is here rendered that Ms. Stringer take nothing.

      . The Stewarts conveyed the land to the Veterans’ Land Board, and the Veterans’ Land Board in turn entered into a contract of sale with Stringer.

      . Tex.Rev.Civ.Stat. art. 5421m was enacted in 1949 to implement an amendment to Art. Ill of the Texas Constitution. Its purpose was to provide for the purchase of lands by the Veterans’ Land Board and the resale of those lands to deserving veterans on favorable, low-interest, long-term financing arrangements. Sec. 16 of the Act provides that a veteran may select a tract of land he desires to purchase, and upon proper application, may have the Veterans’ Land Board purchase it for resale to him on a preferential basis.