American Rio Grande Land & Irrigation Co. v. Mercedes Plantation Co.

(Tes. REPORTER SOUTHWESTERN appeal unless the error 1895, e. does motion for need found signments wherein the damental, cause remanded entitled to the legations with this first five narrow or as are material. demurrer ing acquired the case be former affected judgment granted get nance also ties (Court tention. Even if points may select.” amended en Mexican Railroad old lant’s to but and questions ed G., Gauge the event the immaterial New Triad — Reversed Ill, Appeal [15] It fact disposing the appellee that, the nio. of the streets C. Under do so. rights, we have been the cause Galveston, follows, art. he filed line, & S. providing We cannot right it right Railroad never GATION roads. The right Feb. to it require of assignments charter opinion. Civil except raised. hearing, is further should rule 71a AND Error broad erred is therefore a new F. it franchises, gives original PLANTATION CO. “to curve to make this relocation of of the first five RIO court on error By right judge is cited applicable, acquired here where Ry. remanded, such Necessity. judgment as amended Appeals injunction prayed Brazos remanded. 1913. Motion for Re- petition rights and avenues at CO. in cases where the statute 8. Company, gauge the if the ordinance had for a trial such of 1889 If, GRANDE LAND establish the March Co. trial a agree beyond requested by appellant, Company, disposition asserted here claimed. what had no (145 right road, ordinance, sustaining v. MERCEDES principle contended express into request 282*) (§ motion, On and franchises of separately complained road, & reviewable motion for S. W. support with Morris, we conclusions of reversed, should be reversed 2S2.*] referred to error, was confirmed prerequisite Texas. San its rights special another Colorado right properties nor pass upon solely 1913.) assignments, would and the or both. charter Acts 26th in accordance the build —Motion xii), making a terms filed from announced the Texas material stated, demurrers contention for. said, The ordi in a new trial, & Tex. does not not have purchase Rev. this con separate either appellee of Narrow general appeal; proper is fun- case of powers all the IRRI to an grant Anto- appel Leg. trial case sold the land hav fact and giv as- are conclusions of the St. al- & company water 410.*] show 7. full leading up tions, poration, unless ratified. ity, acts of its purchaser as agent, thority; tions, 6. land so, Purchaser, 254.*] 5. and not a mere agent Vendor and Purchaser valuable 4. as ty, purchase stitutes would is Water 72.*] nent water Acts 24th art. owed reference terms to its canals 2. Evidence ly Statute sale of land. Cent. 3. part to for new trial was filed below. Error, Agent Sufficiency. Agent Ratification—Estoppel. [Ed. Note —For other Agent rigation Company Validity [Ed. Note.—For other . [Ed. Note.—For other Sale —Contract [Ed. missibility. Note.—For [Ed. [Ed. [Ed. Note.—For other Corporations entirely Corporations its own an unauthorized sale of Corporations reduced to Waters Frauds, show frauds as though neither Evidence, knowledge Where Where the Where the vendor and the A An Where 5002), being 1710-1716; Dig. at the time Water Cent. Cent. of an upon which, Note.—For other it is verbal contract for the Courses, Note.—For other duty Cent. admissible, — — —Sale of of, an executed verbal- sale the irrigation matters price and takes improvements, delivered. price, terms, assumed that Irrigation Leg. verbal and a agent under circumstances from which the thereto were Cent. §§ an and Water Cent. persons enter right estopped it cannot original Statute Dig. purchaser Dig. without incorporated writing, parol in an 1874-1899; (§ 442*) agent Dig. incorporated Rights fact sale c. executory Cent. Dig. 84; general open Dig. plaintiff, Dec. §§ (§ (§ 426*) (§ 410*) water were §§ promised by Land. §§ of Sale. action of the land company was authorized and a contract contract 1629-1632; quasi —Sale 432*) — facts, .a 11§ § —Parol -from 1596, 1702-1704, 1707, 1662-1665; Dig. op §§ part only Company Dig. pays void under the statute Courses law, cases, cases, contract binding upon cases,-see Appeal the transaction con- deny possession 116-118; held to have contract of sale. cases, cases, into vary verbal cases, Dec. manager against (§ (Rev. cases, land land Jield § public Dec. ratifies — Authority — — failure to furnish to land § 426.*] time had such author- though 72*) 53*) (§ oe chartered sale authority purchaser ignorant. see see Vendor and nor Evidence —Ad Dig. the Authority specific Contracts concerning company, insufficient to contract which Land. see see Civ. St. see —Evidence- Dig. 53.*] therefor, (§ 254*) — Contract Dec. see corporation, of a Waters agent’s Dec. agreements writing, Dec. to contract Dec. subsequent- agent entirety. Contract. 442.*] and makes § contiguous and sales price no —Verbal Corpora Corpora Evidence, which, § the cor- adopted Frauds, proper- to such perma- adopts Dig. motion Dig. Dig. § Dig. to do under agree —Ir who with sold au- and but it § § § Dig. Dig. *For otter see same Key-No. cases section NUMBER in Dec. & Am. & Rep’r Series Indexes tqpic Tex.) & IRR. LAND CO. v. MERCEDES P. CO. AMERICAN RIO GRANDE required time, merely designated reasonably to to deliver water at a he make dili- Imo'wledge gent inquiry plants vicinity such show for other subsequent require plants ex- and the contract as did not rendered the he seek else- purchaser where. ecution of a tion of it. a ratifica- deed to the cases, Damages, [Ed. Note.—For other see 119-132; Corpora Dig. cases, Dig. [Ed. Cent. §§ Note.—For other see § Dec. 62.*] Dig. tions, 1724, 1726- §§ Cent. (§ 263*)— 15. Waters and Water Courses 1737, 1743, 1762; Dig. § Dec. 432.*] Irrigation por Damages —Action —Peti Suppiciency. 426*) Irrigation (§ 9. Com CORPORATIONS tion — — Agent pany corporation organized Where a under the —Unauthorized Contract irrigation statutes sell to —Notice. contracted to company plaintiff, incorporated irrigation same, That an who was entitled to receive the plaintiff’s company supplied price petition, against water at the terms in an action specified negligent in an for verbal ex- wa- unauthorized contract failure to furnish money according agent contract, ter ecuted collected to insuffi- was not allege charge corporation cient had a ter; therefor no- for failure did not with to superior denying estop appropriate tice of the contract and it from the wa- corporation authority agent. being position of its in no require allegation. such an cases, Corpora [Ed. Note.—For other see tions, 1705; Dig. Dig. 1697-1701, cases, [Ed. Note.—For other Cent. Dec. §§ see Waters and Courses, Dig. Dig. 324; Water § 425.*] Cent. § § Dec. 263.*] (§ 254*)— 10. Waters Courses Water Irrigation Duty Supply (§ 183*) Secondary 16. Evidence — Water. Evidence — Copy op incorporated irrigation company, An —Certified —Affidavit Loss. public against quasi corporation, irrigation company In an a land vide water for owner of action an owed the damages contiguous duty pro- water, for from failure canals to furnish copy irrigating was error to such land rea- a’dmit certified of its dec- landowner, appropriate laration of intention to sonable notice from ability sup- required by terms, which instrument is reasonable ply gence. within its law be acknowledged recorded, same the exercise of reasonable dili- where the same days was not filed three before the commence- ment of the trial and no affidavit was filed al- cases, [Ed. Note.—For other see Waters leging original the loss of the instrument as 311; Dig. Courses,- Dig. Water 254.*] Cent. Dec. § § required by Rev. St. art. Civ. 3700. cases, Evidence, [Ed. Note.—For other see (§ 263*)— 11. Waters and Water Courses Dig. 605-637; Dig. Cent. §§ Dec. § 183.*] Irrigation Special Damages. —Notice oe Appeal (§ 1170*) irrigation company by 17. and Error A notice to an —Ground por op plantation company supplied Reversal —Admission Evidence. entitled to with express off, (149 Under the terms of rule 62a water that its water had been cut x) Appeals, leaving pulled” S. “20,000 cabbage plants of the Court of Civil the im- it about proper of copy got admission of a certified which would be a total loss unless it wa- ground reversal, once, instrument an for ter at was transplant was sufficient notice that if water supplied where was not denied that at such instrument once be unable to it would recorded, copy 20,000 cabbage plants, was filed that the intro- irrigation company duced was correct. sufficient to with charge special damages naturally growing cases, of all Appeal notice [Ed. Note.—For other .see Error, Dig. 4540-4545; out of such Dig. loss. Cent §§ Dec. § cases, 1170.*] [Ed. Note.—For other see Waters 324; Courses, Dig. Dig. Cent. § § Water Dec. (§ 232*)— 18. Waters Water Courses 263.*] Corporation. Irrigation Quasi Public — irrigation company acquired (§ 263*)— Where an un- 12. Waters and Water Courses op Damages irrigation “Growing Crop.” superior rights der the use waters of a statutes Measure — river, quasi public damages it became a The measure of for the destruc- corporation chargeable duty cabbage plants designed as such with the tion of trans- fairly impartially furnishing planted land, through water at a 25-acre fail- tract charge contiguous tract, reasonable canals, although to the land to its ure to furnish water such grant probable yield prop- an ancient ven- value of the under was the riparian rights ready sale, dors vested them the er mature and cultivation when for expense waters such river. less the cultivation and s.uch marketing; cabbage plants, though cases, cost of [Ed. Note.—For other see Waters and constituting transplanted, “growing crop.” Courses, Dig. 322; Water Dig. Cent. §§ Dec. cases, §-232.*] other [Ed. Note.—For see Waters and Courses, Dig. Dig. Water § Cent. Dec. (§ 261*)— 19. Waters and Water Courses § 263.* Irrigation — — op Contract Limitation definitions, Phrases, Liability. For see other Words and pp. 3177, 3178.] vol. provision A of a contract of an company chargeable quasi Appeal duties of a (§ 1011*) Findings 13. and Error — public jacent not be liable to furnish water to land ad- —Conflicting Evidence. irrigation canals, to its that it should grow- In an for destruction of a action per more than $10 acre crop through ing failure to furnish water for negligent supply water, failure to findings conflicting void. irrigation, not evidence could cases, appeal. [Ed. Note.—For be disturbed see Waters and Dig. Courses, Dec. § 261.*] Water cases, Appeal [Ed. Note.—For other see 3983-3989; Dig. Error, Dig. §§ Cent. Dec. § (§ 263*)— 20. Waters and Water Courses 1011.*] Irrigation por Damages —Action —Peti Damages 62*) Irrigation—Destruc (§ tion. — op Crop Mitigation op Damages. against irrigation company an In an action tion — irrigation company’s failure to furnish water in an Where failure to accordance with required plaintiff proper time furnish water destruction of caused the to make application water, allegations plants, requir- rule written plaintiff injured person mitigate- petition appli- made a his written Dig. Key-No. topic Dig. Rep’r same &Am. Series& *For otner oasessee sectionNUMBERin Dec. Indexes (Tex. REPORTER SOUTHWESTERN expert qualified date, ness on the value inform- cation on a and defendant certain products crops destroyed. composing furnish, plaintiff ed had no water to that it plaintiff therefore, wa- Evidence, cases, knew no because see [Ed. Note.—Eor other had, Dig. Dig. 471;* 2149-2185; ter no further written it made § Cent. Dec. §§ put in application therefor, Dig. Witnesses, were sufficient §§ 836.] Cent. fairly sufficiency raised and of notice issue the (§ 255*) 2S. Witnesses- —Examination—Re failing justification question plaintiff’s freshing Memory. ' making demand. continue irrigation against In an an action com- cases, and [Ed. other see Waters Note.—Eor testify- pany damages crop, for ato witnesses 324; Dig. Dig. § Courses, Dee. Cent. § Water pounds cabbage to the number of rais- 263.*] relating ed covering and transactions certain ship- several months and scores (§ 261*)— 21. Waters and Water Courses properly permitted ments were memories to refresh their Irrigation Repetition oe Demand. — by reference to made written data plantation company to a In order to entitle them, or under their direction within their company irrigation damages from an recover knowledge. had water as it for contract- failure furnish cases, Witnesses, [Ed. Note.—For other see planta- do, not essential that ed to it was 874^890; Dig. Dig. §§ § 255.*] Cent. Dec. continually repeat request company a for tion water which supplied. Appeal not he knew could it (§ 1054*) and Error 29. —Harmless n cases, Error —Admission of Evidence. see Waters [Ed. other Note.—Eor damages Dig. In an action for tried Courses, without 261.*] § Water Dec. jury, documentary the admission of certain evi- (§ 261*)— 22. Waters and Water Courses harmless, dence was rejected it been where could have Irrigation eor Water. —Demand changing the result. plantation entitled to aWhere company cases, Appeal [Ed. Note.—For other see irrigation supplied makes an Error, 4186; Dig. Dig. §§ Cent. Dec. § therefor, is bound a demand 1054.*] demand, though language the demand of such (§ 261*)— 30. Waters required. Courses Water be not Irrigation Liability Damages. — for cases, see Waters other [Ed. Note.—Eor irrigation company negligently Where an Dig. Courses, 261.*] Dec. § Water provide system pumps adequate failed an 263*)— machinery (§ though pumping, ex- for 23. Waters Water Courses Crops Irrigation ages. ordinary ercise care it could known have oe —Dam — Destruction plant inadequate, that its and at nominal was expense damages for destruc- could increased facilities for recoverable furnishing low, crop been should have the water while the river tion of the was average price date where from as a result it unable fur- measured plantation company when it nish a to the date with the water the destruction entitled, been harvested. it was liable for consequential damages, though the low cases, other see Waters [Ed. Note.—For river render unable to contributed to 324; Dig.'§ Dig. Courses, Cent. Dec. § Water furnish the water. 263.*] cases, other [Ed. Note.—For see Waters Appeal (§ 1033*) 24. and Error Dig. Courses, —Harmless 261.*] Water Dec. § Damages. oe Error —Measure — (§ 41*) 31. Abatement and Revival adopting an er- error of the court An Right. Grounds —Transfer damages harmless, where roneous measure ground It was not for the abatement of favorable no measure more person an testi- action n could adopted. have been prior fied commencement of the cases, Appeal and Note.—Eor other see [Ed. buy” bargain suit “he and had “offered some” of to and the the stock 4052-4062; Dig. Error, 1033.*] Dig. § Cent. Dee. §§ sale; stock buy buy, bargain being make a not part offer Appeal to sell stock (§ 1050*) 25. and Error —Harmless already immaterial he view fact that of Evidence. Error —Admission crop owned one-third of it. the destruction of a In an action for products, cases, admission see [Ed. of of erroneous Note.—For other Abatement certain prod- 212-220; Dig. Dig. Revival, market value of such Dec. evidence Cent. §§ compe- harmless, § 41.*] where there was ucts from which the court could have tent Rehearing. On Motion conclusions. the same correct reached 261*)— (§ 32. Waters and Water Courses cases, Appeal see [Ed. Note.—For other Irrigation Damages. —Action for 4166; 4153-4160, Error, Dig. Dec. §§ Cent. irrigation contemplates While the statute Dig. 1050.*] § irrigation company may be an unable to Damages Crop (§ supply adequate 174*) all water consumers with an 26. —Destruction water, amount of defeat recov- —Evidence. ery against in an an action for destruc- action an crops products, for failure to. tion of error to where the defend- certain testify permit from a witness to that of ant’s did not arise the fact that supply. products some were sold at the near- other consumers used the whole raised point shipping shipped cases, and others to of est market, other [Ed. Note.—For see Waters on a but that were sold basis Dig. Courses, Dec. § 261.*] Water shipping point. the nearest f. b. at o. Appeal Court, District Nueces Coun- cases, Damages, see Note.—For [Ed. Hopkins, Judge. ty; W. B. Dig. Dig. § Dec. §§ 174.*] Cent. Action the Mercedes Plantation Com- (§ 471*) Evidence —Conclusions.- pany against Land the American Rio Grande against irrigation company In an action through crop Irrigation Company. judgment of a defendant’s failure for loss & From a testimony water, the to furnish a witness appeals. plaintiff, Affirmed defendant ship- was a market at nearest that there part part, and and reversed in motions for objectionable ping sion of the was witness, a conclu- rehearing particularly overruled. where the wit- topic Dig.-& Dig. Key-No. Rep’r *Forother cases see same and section Am. Series Indexes & NUMBER Dec. Ter.) CO. IRR. MERCEDES P. & CO. RIO GRANDE LAND Booth, therein, reasonably both H. Frank obtainable and for Mason Duval West Wells, appellant. B. to de- Antonio, time mentioned was entitled Jas. San Williams, An- sufficient Brownsville, of San mand and receive from of' Brownsville, Seabury, That on Feb- farm. tonio, for water to F. and W. acting through ruary 20, appellant, 1907, the appellee. Campbell, agent, Sco- sold to authorized appeal appellee’s bey, Lawrence, vendors, TALIAFERRO, comes J. county, p.er farm acre. That $40 Nueces aforesaid for court of district from the change purchase price paid of venue a small sum tried it was where began possession, county. Appellee, Hidalgo Merce- into and went made improvements appellant, permanent Company, and valuable sued Plantation des Irriga- & thereon. As an additional inducement the au- Land American Rio Grande alleged duly corporations, sale, Company, it is both domestic tion for agents agreed alleged arising damages of said com- breach thorized the from ap- pany appellant by ir- water to would “furnish water sufficient to to furnish contract Appellee’s rigate irrigation purposes. or before pellee legations, al- all of lands so sold on the for September 1, 1907, brief, 1, June or not later than were: charge per irrigation per Campbell, 1907, Roy E. a was, $1 F. at of of It vendee put charge Lawrence, acre, Scobey, owner of later on but would the T. M. and Hidalgo acreage basis,” fair meter or purchasers and that of land acres a- tract of 197% agreement adjoining Tex., way county, right relied this verbal and north of Louis, & Brownsville to furnish water and closed the trade. of St. of Campbell, Scobey, Railway Company, of Lawrence near the town deeds to and Mexico Mercedes. 1907, purchased by until November was executed That the land appellant, appellee’s to and and a reservation of contained vendors pipe body, to maintain lines and transferred “construct and in a solid but was lies appellee’s separate deeds, across to conduct water and four ditches over vendors six canals,” convey- rights way conveyed each, for its said lands and of 40 acres of which acres, any agreement and other of land were or refer- 18.06 18.356 acres. but did not contain ed por- provide parcels any agreement All tions of a water be- the several ence to fore appellant to part September alleged “Llano of a 1907. subdivision of 25%-league any grant, Grande” Spanish water on failed to furnish through government Hinojosa September 1, 1907, to Balli but Jose before Legislature promised Texas, agents, Silver, and and confirmed and Carter February 10, purchased agreed Campbell, Scobey, was Law- land -with and by appellee’s purpose land, rence, vendors for fur- to who then still owned the farming, which, region it and was situated in a December nish them water on or before insufficiency irregular- up both from rainfall, to and dates thereafter and at various ity irrigation necessary promise May 23, 1908, said was continued growing crops Campbell, Scobey, the successful thereon. and Lawrence purchase early adequate That at the time of the dates furnish water at would thereafter. appellant was, now, corporation and organized irrigation under the laws Campbell, Scobey, May and Law- On 23d purpose ap- state of Texas for the sole corporation, into a rence formed themselves the Mercedes Plantation propriating, conducting, selling water, and Company, which powers, privileges, in accordance with the plaintiff Campbell, this suit below. irrigation and liabilities contained in said Scobey, all Lawrence the owners and By incorporation statutes. appellant virtue of its conveyed the stock and July 30, 1906,appropriated on wa- rights, all to it the land and their con- said purpose ters the Rio for premises. Grande of ir- tracts, causes action in the and rigating 250,000 May about 23, 1908, acres of land situated That at various dates from Hidalgo and Cameron August counties. That a 1, 1908, appellant, agents, con- portion of the said land promise bordered tinued from time to time to early riparian same, Rio Grande and provide adequate water, but date and that a of the land was nonri- that nevertheless failed to furnish parian. irrigable appellee Included 15, 1908, land afore- until October said was a tract of acres out of the and did furnish sufficient water until grant mentioned, Llano Grande above pro- which all December 1908. That the water appellant surveyed caused to up January 19, 1909, and subdi- vided furnished vided into smaller tracts. small agreement, These tracts under the aforesaid verbal on sale, purchased it offered and the land which date and in- entered by appellee composed contract, paid a number of ato written appellee’s such small charges tracts. That farm lies all the water un- furnished within the watershed of the Rio Grande and der verbal contract accordance said contiguous appellant’s is and branch terms, east main cdnal its re- canals, money can paid. be watered a ceived the so gravity alleged flow therefrom that, making when the water there- It is deliver- highest in'is at less than land, receipt pur- safe water level deeds to of 155 S.W.—19 (Tex. REPORTER SOUTHWESTERN obliged plant delivery water, cotton and price, said 25 acres ac- chase $700, ceptance payment charges, corn, crop- worth for- water returned representations expense things deducting that, ratified the after and raising crop, agents Scobey, loss Campbell, said net suffered acts of its Lawrence appellee, $7,500. and to agents’ estopped denying alleged: (4) is thority. au- Jan- said It was That on further alleged immediately uary 19, It is entered agreement purchase on Feb- into written receipt upon ruary Scobey, 1907, Campbell, appellant agreed,- Law- wherein began clear, plow, conditions, the the and fence rence certain terms and deliver vendee, land, appellee, cleared, appellee adequate irrigate their water to kept continuously complied the said land farm. That with all ready cultivated, planting, ready conditions of said contract and relied promise with its field ditches and laterals receive and 1908, wholly to deliver water in.suffi- carry quantities January demand, water until December cient 20, on appellant, time, cabbage. up planted early to that but that 80 acres Appel- That to furnish water. failed needed alleged up lee as follows: but one to close harden heads, (1) Campbell, Scobey, Lawrence and that on That said date demanded ap- appellant $12,000 reason water to sufficient 37 acres loss suffered adequate pellant’s provide appellant to thereof. it failure But that to furnish failed irrigate .properly any 6,1909, May water water to until amount of and that even 1, 1907, to it from June tract of acres then furnished for water 25 acres and 197% specially they That had refused to dates ance December prepared furnish That more. on various planting April May truck said for from land 20th to 6th the bal- it of and the same maintained the 80 had cleared and acres of had been during plowed in time, and cultivated that irrigation, appel- state need lant’s but that because of ready prior repeated to re- laterals and ditches refusal with and to furnish they appellee make, had That if. been ceive the water. water knew was it useless to provided period during they therefor, water formal demand for and that reason crops provided truck which two would have raised did make the demand for expenses, $12,000 By netted above would have the aforesaid contract. reason of this supply water, appellee water land was worth but failure to without ( entire- ly grazing purposes. cabbage, 12 lost acres but rental for $35 and all the greatly special damaged specification balance (2) thereof for was was loss The second weight by of quality, and deterioration in suffered to have been and claimed obliged appellée reason of was said failure to fact that furnish reason of the prep- keep employed cabbage appellee water for men said 80 to and mules acres $12,000. suffered a judg- net land;' loss of as the aration of the said appellant upon (5) January 20, 1909, That appel- was ment this for on assigned planted issue, and same is not as error cucumbers, lee April 10 acres of and on by appellee, 21st irrigate it it need not be further discussed. demanded water to appellee, January 1, 1909, (3) appellant them for on de- 27th. But That re- appellant’s any and, relying plant, purpose fused to furnish water for sired to May duty promise was until furnish was and for too late ready plant, cucumber, they farm about acres said the needs of said and were very greatly cabbage. damaged thereby it That on said had date net patch grown seed, $12,000. of 29 amount .acres grown hardy. (6) and that same were well and appellee January planted That on 20th expected early ob- these 29 acres it 10 acres in That from tain ance of have appellant manded water tomatoes. That said to- transplant plants irrigation April 28th, bal- matoes needed sufficient and they acres, duly ap- and demand therefor pellant. so but for failure of able But that it failed to .do furnish water been May 6, 1909, furnish water. That de- until therefor because of which delivery upon date,, for said greatly damaged said tomatoes were $2,000. to furnish the

but that failed .same loss of suffered net 4th, Appellee January alleged and then until sufficient further its writ- irrigate appellant, January acres. then That it discontin- ten contract with dated January supply 11th, 19, 1909, agreed aforesaid, water ued the until buy, it and. appellant agreed it, the meantime were .com- to sell and deliver pelled up away irrigation pull 300,000 and throw acres 197% cabbage plants, aforesaid, which could and would have on certain terms and conditions. transplanted following been land, 25 acres contains the the said clause: supplied purchaser “The or waives claims--for water in loss any damage high obligation, reason or low accordance with land and that said Grande, any leak, break, of the Rio or water seepage would have matured returned a reservoirs, crop $12,500. or But overflow from ca- worth because of thereof, any. parts or or branches nals default aforesaid Tex.) LAND & RIO GRANDE IRR. CO. v. MERCEDES P. CO. alleges, however, irrigation system, It or that on November the supervision under the control engaged company, oth- it or for the construction damage Grande, cause, except as its er or canals the Rio but did such loss complete may gross negligence September, until them about be caused ap- pecuniary company. loss to a where water to No claim for pellee’s against land; canals, damage that all its ditch- shall enforceable es, wholly etc., completed, within unless the is notified when acres, thereof, constructed the same ninety days amount within and of the solely irrigate complained of, land act own acre, per wholly in no event in of ten dollars lands of vendees the said excess within 40,000-acre tract; of the land.” has never appropriated Appellee alleges to itself that the limitations the use wa- liability power in ter or contained land virtue of of em- contrary alleged inent domain. It the void because an fur- to law above clause then, stipulated appellant is, ap- ther pellant and was said sale that “irrigation company hire, un- vested should have free access to and der the of easement laws of state with over the land sold to construct its pipe corpo- quasi domain, public eminent and is a lines and ditches and to run its roads highways ration,” duty across, over business is to and erect its .whose poles transport landowners, wires same for and sell whose over the purpose maintaining contiguous constructing canals, water from irrigating operating purposes, upon plants, etc., Rio Grande for rea- and for water, light, heat, etc.; sale of re- sonable terms strictions so. unreasonable that thereaft- liability day er January, 1909, it, on the to do 19th on its previous alleged agreements, accordance with was further enter- was, duty imposed by law, ed into the reason written contract with obligation receipt irriga- for tion it is sideration, agreed, among under to to its sis that in lant, furnish sale purposes, contiguous lands which were hereinabove mentioned. And alleged canals, upon equitable appellee, upon a fair and ba- a valid con- any restrictions; made unreasonable the said contract and disregard duty appel- legal things, of this to the limita- by appellant’s refusing tion of duties water as it was and liabilities as its quoted; legally appellee do, required agreement the hereinabove bound to coerced and convey contract; appellee upon water to make the said written was based agreements and there- the contracts and that said written contract covenants set out in said upon them; all fore without consideration and void. and and that appellee thereby conclusively Appellant by general demurrer, is bound and is answered deny estopped special by exceptions, general the same or to aver that numerous de- any special nial, answer, effect other than that ex- as and follows: pressed in written corporation, said contract. It admits that it was a char- Appellant says general irrigation further tered under Texas, terms laws and just conditions sonable pellee, section said contract at the time .it owner rea- freeiy by ap- entered into about acres of in Llano irrigation grant fronting who well knew Grande, in that Grande the Rio in experiment fronting was an untried counties aforesaid on the said sought the lands to be watered were unde- river and within the watershed thereof. But veloped unproductive alleges purchasing and that the feasi- it said land it also that at the time of bility certain; conducting acquired right water to them was un- its vendor’s enjoyment the season of 1908 and 1909 to a free use and of the waters in was the first which an effort was made to of tic for the Rio Grande and domes- crops by irrigation appellant’s along purposes; riparian raise that all said land was appellee appellant by purchase neither river, canals and nor had to said thereof any possessed knowing rights riparian what of a means would be the became owner on said stream; experiment; surveyed, appellant, in that it result of such developing sub- spent tracts, platted '40,000 enterprise, into small the said divided $2,000,000, acres of said on and of more than but that said venture subdivision 1907; conveyed experimental, November was hazardous and so un- the 197% Roy Campbell, parties suit; acres bey, aforesaid F. E. Sco- both derstood to this separate knowledge in facts, and T. M. Lawrence several that because with full these tracts, separate thereof, appellee, joining ap- several deeds. alleges time, pellant

further that at the same in effort to meet and overcome part sale, freely as a difficulties, of the consideration for said such doubts and and will- agreed convey purchasers it also ingly into the entered written afore- right Appellant alleged “the be spe- receive from the canals to further that a said. by it, right appellee, constructed and that the con- cial consideration recevied veyed purchasers passed this, to said to and be- consideration of canals, purchaser agreeing laterals, came vested in the field to construct Campbell, Scobey, belonging from across certain lands' Lawrence. and ditches (Tex. REPORTER 155 SOUTHWESTERN it parent at no time did ther 291 accidents,” sign, in accordance with the judgment resulting required by the control of son of which lant’s with the giving appellee, special ed gence of irrigate might the arising control, sonable care appellant, sulted ed of its excused month es irrigation by stopping whicli were so constructed from failure ter $9,821. May, of failure dent such time the occasions unless to during acres of for 10 acres of special in the care appellant, appellee any Scobey, The case was tried without Appellant ^[1] furnish resulting complained, after the same became 37 acres plant appellee. tlie the said water from same, low and costs tlie said land alleged that 1909, $12,000. alleged Rio Grande written cut off notice of its of in a to it and they present fundamental months repairs, statute “casual, said all of which for failure to denies cucumbers, $6,2S0. The not included rules (2) a 25 acres June to January, of to and for the costs found during water, or had in assignments preliminary tomatoes. judgment from Lawrence conduct further said rules its of supply 37 acres was causes over which might the water contract. Damages inability alleged contract with appellant; agreed 1, prevent level of limitations of or for necessary by damage cabbage, machinery supply imminent because as follows: unforeseen, give reason of insufficient failure to 1907, of land in the months anticipation 1909, court; right the claim land contract. need for agreed water pleaded hire failing by by appellee, appellee knew, (4) for furnish water being deprived necessary; said contract. to furnish water. Upon supply to December except water Appellant also resulting by $7,190, of error counter reason crop tlie other cause Damages resulting of men and that the to enable appellee other matter at once furnished damages of which business supply between Rio Grande May, did not to exercise 197(4-aeretract, appellee it was or unavoidable was caused cabbage on a a and tlie Appellant fur- sign, for (1) items great when repairs of jury (3) Damag- court proposition, damages question considered, 1909, if it failed errors, general April irrigation, the notice found for Campbell, water for Damages water for and for them in lr to have and it 'cost to and re- by rea- had no thereto comply beyond of reason reason plead- appel- mules negli- found favor 1908, sign- $35,- inci- rea- wa- did ap- be- 10 to to of of rules as amended is now of held that rules 24 be filed District, cially lows “A probably judgment of error such in all cases where amended statute shall be with or without a adopted motion for which peal originally adopted, as follows: “In all cases where a motion for new the trial court which raised rule 71 adding party excepting to the of fact ed, be 89 Tex. Tex. matters of record tions to tions were not sentence on the record from a of such a motion. the rules dict of the Forbis, on only questions involving the evidence out a statement tions in the cause new trial excepted thereto, upon out Before The amendment Sparger, changed. January Acts of litigants. Among others, this rule is a writ added to this : Nunn * * * eases complained take his by presented during covered accounts Court of materially court found by express provision rule No. 71a 99 Tex. pleadings judgment required (142 article therein, required ‘ required motion had a 15 S. W. a as every 1899, p. 190, jury court, Case was under January Nunn the lower court. 35 S. W. transcript.” W. U. new trial.” The clear practice by adoption it shall Tex. error motion for new trial. When appeal overruled Civil 1333, Such failed to file motion support court subsequent is of is case. Rule of facts or or made and the construction of the trial, statute which of the trial affect and a motion for new trial to matters of v. to be stated, Telegraph Civ. every case, did parties judge 787; 89 S. W. judgment jury, xxii) Appeals it was well settled that (145 R. S. new part motions an 4; fundamental, except Yeale, such or writ of statutes. conclusions to assume would not 25 be fact that the learned because App. 82, not contain the court rules as which reads were direct express exception proceedings cause it to be noted specially Clark v. or sustained excepts the amendments to does S. W. or trial City rulings (142 or the conclusions sufficient for the 1895, except was amended party great importance cause, desire to amendment, does verdict must trial, separately 149 S. Supreme Co. v. of the Seventh law 71a, further for made district entry consideration, whether not sufficiency of court, S. W. shall of Austin v. 32 S. as amended vii), This clause special not error may rule when upon cases unless Pearce, which the set out as was when the new trial such acts of law or require Mitchell, Railway meaning W. changes that he require became rulings xii) W. appeal or sue as fol- excep- excep there- Court with- ques tried stat- part filed 758, ver- spe- last ap- as is a ^ Tes.) LAND & IRR. MERCEDES CO. RIO GRANDE CO. v. P.

judge limited sense. did not cite the A the tion which tions ror is therefore overruled. tirely verbal, brings form, was and void because not periods: space pellant’s fourth and fifth cussed. mony supra, to mitted.” presents this case under another lished rule arate water void under the statute of frauds.” of governed should have been sustained parties to was when the sequently cember lee’s leged specific that, “where it assignments appellant of time were rights contract was two ciency of the verbal contract between the vary sideration show what the pellee’s duced to 1909, entirety. cember which [3,4] void,” support these purpose applicable court was propositions. year. sale, executed; special actually supplied, right between Appellant’s assignments of error from as to such verbal contract to are as follows: “A verbal of one should therefore who conclusions of fact contravention of the statute 1, 1908, during petition case is The second as a basis of 1, inclusive, time a sound second amended terms propositions (1) writing to furnish within the terms not rental, In the written contract Greenleaf on Ev. reduced this 1908, Three wrote the of of appellee’s objection exception concerns the sale of land is that different rule 71a. That from June year complete recovery “a time of parties parties materially requested varying to law, theory, properly appears original reduced to verbal the facts part verbal principle raise the issue a propositions or be The first abstract, price; from the to part only (3) i. date contention water, to lease of performed the result and should not at the principles is is correct which time which, recovery and e., filing in itself and was or opinion depends writing, writing, be agreement from the In the verbal contract which can ther contract a contract divisible furnish equally well admissible, different assignments when changing (2) that from De- January here, exceptions performed petition contends that original and law which of article writing, § separately making for the several 1, thereof is sub law; are 284a. it was agreement present which it is under 1907, did file parol a of the suffi January water at proposition within allegations suit. The permanent water, only into three cited. agreement composite and were presented made law, 19, were seeks negotia original petition not contain periods thereof subject but to reason frauds within to De- The and is appel- estab Court of in its made, bring these testi 1333, 1909, it is case time of ease first con- frauds and por per sep- dis- ap ap en re 19, er- al- inite as the is, 1,-1907, pellant’s to enable it to incorporeal hereditament which is as insev- canals, quasi public corporation, herein, have secured from the supplied to sory right provided, right contract with reference to the water were the erable from vey art. 5002 et of date so as red above act has not rights which Civ. mond, water to ganized ers. Erom these or Rice who wrote the creates a charged rate delivered and the time at which it would their contract.” contract of the corporation, guage established delivered. meaning. tiguous * * year equally title,' lessened that act in “all law, and which p. price powers upon it “to all right App. m case no contract provided that, with time. & appellant upon is made * will 47 Tex. may' of second of the performed a does not come within the statute then under persons was a and the to contracting Irrigation Co., with duties and chartered canals would be in accordance this state and terms 192, and the plan day the act well settled quasi As of the Acts of 1895 pass or any principles to enable it to deliver water duties, of the Appellant corporation Am. is not void. Thomas v. but a seq.), the land aptly persons entitled title to land proposition virtual 118 S. W. a public its canals powers may stating appropriate its intentions. law. an easement a contract of opinion with the canal,” etc., who own public corporation right St. powers In ease of a sale of a within and follows the on June corporation careful which cannot be Tipton said held that such a charter very clearly prorating not be article to Rep. The possession. of law nor the matters agreement we that a certainly void, to the under 844, 98 Tex. with title, grow, purposes which complete light Legislature will which it would completed by or water and study performed public privileges the Borden adjoining contiguous to receive permanent 1, not sound. makes and “who shall Tipton, and cases begin verbal upon hold year open etc. It is fur to the duties of use the terms section are learned In Borden v. complete fully (R. we shortage. R. in the defined the of the commensu It was kind, September supply conferred operation of water a to verbal from the land language clear the which Supreme changed think S. or con same”; quality discuss to con confer posses- within supply but Ham 11, c. 86 S. judge there Case, 1911, well- pow was, Tex. lan def can ap or be be is (Tex. 155 SOUTHWESTERN REPORTER price; possession and valuable tract, 80 841; ory it. May, so far agents, the this ployed was a mere incident which a court of sideration the treated. price, ness would enforce of the it cannot be so dridge Hancock, alleged Ward v. cable to case Scobey, verbal be exercised and lic from their duties secured as ter duty under others Common carriers and others plant, cannot, garded recognized sonable through taken from the water course and conducted instructions from fixed court, the water of the corporations eminent conflict with the mean that out of the the nevertheless be rule of corporation sonable Be [6] This view of the case Tex. contract, S. W. callings consideration of purchaser agreed upon provided corporation land, rights. seems statute Willis 74 S. We and the the as v. sale of of their property as evasions of to have L. Carter purchaser. as 296; respect; those law terms, transaction has all the elements terms. Such domain, able Stewart, There limited lay the law. this constituted an executed come then R. affected terms, to have well-recognized principles appli- this statute to owners v. as absolute and uncontrolled. Lawrence shall here canals, the nature of Reasonable contracts are what wiler are endowed with the 107 Am. St. means, in the Robinson v. for, transaction between charged improvements paid Matthews, subsequent 804. at company, if the been employed rights. subordination to such duties ed to owner entitled avail themselves fair was tendered and between tbe subject, and the only can given grow, and the contract for the sale. We with a rights its form been tried power such Hendricks and as'such and not portion proportion power Tex. language, only with such grant Tex. time public business those the Borden Case the duty.” to Rights to the owner agreement ipso facto, a. public S. P. the consumer shall to water Davenport, Rep. subjects said: “The delivery power contemplated public interest, authority possess receive, of the specific property; purchase 333; McCarty those calls be 18, upon Tex. and effect. were made. engaged'in pub- of the verbal rights do or contracts em- Let consumer and Silver, understood power 6 S. contract, absolve them 98 Tex. v. is to be re- aided of the water duties, quasi public 483; parties so situated is it must be parties as do not of a Campbell, Upon accepted; Snediker, as to power evidently purchase contract, power the con belief? W. contract the the so view 40 the wa- deprive prayer equity to the is the power position Wool must right upon busi- deed Tex. 818; con was Land rea- sell rea- was but such as of of of to lands purchasers, duce than notice of based June, be num, the directors therefore Campbell behalf, ity, ers refused an tion, property. the to answer to to sell lands, following, pear powers convince authority, presumption the law. The trial court ence when water should sembled particular liver water at Silver, fact promise Campbell only by make any Willis, lant tended that pellant that he did stances, have been made. The trial charge that L. R. Carter was vice ed office, What firmly deliver error, delivered agreement so far as was sale required that both company. September 1, 1907, at general Case 1907, which the verbal contract is belief? upon & us Carter charges on the 20th law, acting and also and within of the sales of land. 33 Cal. or authorize then once.” Irrigation Company fixing its board of company, such as to No circumstances at the then established Campbell very not to exceed Campbell, Scobey, would said appellant’s twenty-fifth assignment water, as express authority time. Therefore it cannot be con We promises is well sustained some fair meter or a directors’ the land promised acting separately to said contract the said to induce the facts: with the buy was the and Silver as consider his associates were led to the manager for said Appellee, Carter forcefully says had such think any specific lands, thereupon. later the under It is not hold that agree time, be part and see if it fixing or said appellant company and his the and his associates to de had- actual 91 Am. to deliver water at $1 reasonably day and the could be lands about the 1st of them that water would directors, regularly purchasers the sale to furnish no with and were the circum with value because of scope the said Carter and lands American them meeting; company per the amount of the $6 citing authority, “The said disputed circumstances later delivered office, charges found, Silver had facts associates of such can be exercised per time. Was their country that the In order to Dec. acre short by authority. agents president of February, 1907, unless evidence shows Appellee to act verbal known to said have no has would acreage comes within Gashwiler v. their author- acre authority make it Lawrence surrounding Rio Grande to farm the and on its per found as a that Silver would well alleged corporate and to so the date purchas- the rule contract per charges justify private irriga- actual alleges which power appel basis, Gash- refer- stat said an- ap ap as in- be to to y. Tex.) & IRR. CO. MERCEDES P. CO. LAND RIO GRANDE eral

purchasers Thompson to sell manager thority arily v. 34 Am. St. 43 Tex. v. sell them the land of the company, and no that exercise board of to his it ratified or confirmed. chasers to ity. Carter was not sonal ident Hurlbut v. 103 W. 409. ped Lawrence to sale of footing ratified the acts of its St. their trade as its bound the same as ther the or circumstances to porations, 2, authority make a sale of the land nor the ments were not adopted said Carter pany App. 275, of the facts and knowledge Cr the der to bound which it was dealing or, [8] At this Hugo, § 720. McCormick, the facts Rep. land. supra; Gonley selling trial court found as manager land, eek, neither Carter Carter such an Therefore exercised request, on be of the with full own leading up as is price Civ. deny induce with indulged require, can be directors or under an honest appellant, 81 Tex. to fix a 52 believe power § Furthermore, Campbell, hand, land of ratified, etc., land, Rep. testimony, behalf, nor Gainor, appellant, App. thereon, necessarily aof S. W. their Carter Corp. purchase there There can be land to assume officer has the 85 Tex. at formality said Co. ignorance. presumed 815; Liquor Silver Silver, which is vested with would As has been land of the if the as to Cook on price upon that time corporation to the sale were v. purchasers if follows that neither nor Silver had officers own, good unless such acts were authority reasonably it should §§ * 101; Thompson 45 Tex. Civ. were no telegraphed presumption Campbell, Ry., and, Campbell’sper governing power, such the contracts had at St Louis to Hutchins, 94 W. such had actual 17 S. W. 4871-4887; company. his * * put acting the said agents incident or custom acts S. contracts or faith and honest that full 44 with Corporations, authority had such author company, nor to a full fact that “in or their authority Hurlbut v. would be misapprehension an officer of the 23 W. the land. Nei Tex. Co. v. sufficient facts promised have such authority. had and would transaction be noted that like shown, L. lead the authority contract and presumption Seobey, reference corporation. 21 Tex. Civ. S. knowledge lands, acts knowledge A App. 579; authority according Land whatever any position. Magnus, 26 Am. adopted general on Cor not be binding to bind a level a agents obtain Green agree estop Gain pres them been com Toyaho gen that pur 123, fair au sell vol. Co. On R. about that acre per stances later than a believed clear the learned court who tried this cause have seen sible, to it was a had made great gence. Moreover, sible to struction and were first ply, and that it became completion matter they dence would see in to obtain extensions into November madeoby Campbell this ruary W. the authority ganize the deed pressions in there appellant specified answered these when the farm is effort was made trary, matical, would casions ed. deferred Seobey part On notice that induce the the stock of the purchasers.. progressed acre.” From Carter, president proposed purchasers with care person utmost buyer, how this chief water would completion possession; per caused knowledge, stress Yet there was never entered June (which corporation purchasers. written naturally of the consideration. spoke and Lawrence were about performance. and, judge charges time was made part delivery valuable company contrary, payments their water purpose of water was to be considered as recognized and might which a man of careful interest 1, 1907, might a series general appellant’s agents. while into a until ordinary circumspection of the land and value he subject with was sold during 1907, The sale purchasers letters, seen the value of the therefor would be promise ordinary prudence have be delivered be rplied to confirm this certainty of water it proposed corporation, in It and to deliver water at September Mr. April 8, following up inspection and delivered. and not to exceed apprehensive uncertainty correspondence on the land. Carter belief difficult, if deed was executed on cause), during March, certainty any which rights cannot be to cultivate The construction had was followed purchasers finding been both important right, of Campbell, during and on letters, canal was purchasers testified with the land and necessity was made on Feb- where protected. under no with reference to a contract become was formed and adequate. might to follow the time and to see appeared his construed into ordinary Appellee a contract indicate that to said 1, success; and the time of the denied that on the time of it was of the time letters that several seller fact, 1907, long with dili- interested were anx- who with statement presumed from the company, the con- time no passing circum- entered making $1 expect- proble- up guard- Let us impos- up which would lands to be could With it pru- lays sup- con- pos- per ex- or- oc- $6 T. (Tex. SOUTHWESTERN REPORTER water, present clearing, fencing, ions to obtain tbe there was on the land at in charge appellant developing effort fault 11, 1907, Campbell with property at that time to and otherwise delay. expected on March money account of the On pay we should not be until we are to our Car- reasonably securing wrote President sure of wa- you ter, at “I St. Louis: understand crop might in ter time to make a It this fall. very likely completed will by ditch place have the say not be out of for me to that I you quite do, If it would June 1st. give you per would not five dollars acre for satisfactory to us to have the notes agreed purchase the land that we have unless water was made available to the payable urges In he June 1908.” this letter . cent, accept per any price, in fact I it at as have .would corporation of by stock to be formed irriga- I consider it worthless unless under improve him and farm land tion, and it seems to me that would be question. letter words: contains these asking you very little to extend time of you give “I wish consideration, the matter further payment our first to a date that water can’ you finally and if decide that be used us. seems to me too much like you way, cannot accommodate inus this we buying pig sack, in a and while I have operations will have withhold until next great engineers confidence that have very likely year, when will all of us have planned irrigation system might there money present.” than more have at we contingencies prevent some us from arise that would March On 15th he wrote: “We are farming any part land of it progress your at all satisfied with the you years, for two I and will ask to recon- company making putting towards your sider decision to exact one cash fourth bought, un- on the land we have * * * payment 1,1907. June IWhile did less some strenuous efforts are used positive agreement your not son, have with your company impossible it would when I discussed this stock vegetables crop us to mature plan him, agreeable with that it would be part coming of the land this winter your company accept proposition, to he our spring. We now have 40 or men at work gave hisme assurance that there would land, clearing fencing, on the and will be no trouble that account. he spend money month, considerable each and not, myself Mr. Lawrence would not put possible will cure in if on 100 men it is to se- gone deeply have into the matter as we as them, getting with a view of the land knew at have we the time made the we crop condition time to make a this purchase that we did not have sufficient fall, dependent, course, of favorable answer on whether or develop way property funds to in the you not we receive a desired, way 'that we that it should regard you to the accommodation will developed prop- paying be osition out of it.” order make a give us, by taking our stock in lieu of ven- regard payment, dor’s lien. to first Mr. dis- On November 5th he wrote: “We have Scobey your son, Ray Carter, Mr. improvements spent part on the north quite thoroughly your cussed this matter within 86,050.00 our land and have about 150 acres past week, suggested son good cleared condition but will have uncertainty on account of the of water be- stop for lack of funds.” And on November put crop on the land time to make a 11th as follows: “On account of the failure payment fall that this our first should be- two our banks has made it almost Sept. 1st, payment come due on our second impossible money to secure from the others. after, pay- 18 months the third and fourth your company * With the * * assurance from years ment The one two later. time time that we would have water organization stock this crop spring spent amake next we more absolutely necessary go if we ahead with money development of the land than clearing crop, and mature the as amounting would, we otherwise 86,000.00, tive, than more go we have not sufficient funds available to money unproduc- and this is now objection ahead with work. I can see no eighteen and will be for part the next your giving us, on accepting this concession to months.” 866,000.00 worth of stock April 11, 1907, Carter, presi- releasing On T. W. as lieu of vendor’s lien and the land * * * answering company. company, letters, Upon dent of to the stock re- Campbell’s “Regarding ceipt you please of Mr. said: letter wire us whether accept proposition apt, when we will be time able to furnish will our as you position say. we are not in a do not will We we withdraw our men developments, working can, comply from' as fast as we will it is cer- part tainly complete to our to promptly our and let interest our canal the land present.” possible.” rest and furnish water In “Up appellant’s taking pres- On 9th he letter matter of wrote: you given concessions, ent time with extend us no stock formed possible exception agreeing Campbell, Scobey, and Lawrence and also payment arranging pay- the time of our first to June the manner the deferred partial to, land, I feature am not on ments acres were dis- 197% spending money Again, May 11, 1907, Carter, I that the for believe are cussed. on in we y. Tex.) & MERCEDES P. CO. LAND IRR. CO. GRANDE RIO have writing you Work on the fast as a have water ious all that get ter surances 1907, replying 11th, about ment ing time amount of city crop returned pessimistic surance as crop we would to ise to whether 1907. ing any talked that water your representatives on their any could not your representatives time we gust 1st, company ing office of plied, your time liver any has been named offered spring the work has Mercedes else, they ty. point Not until fall differ, verbal replied: expected to money been done the statements made one else ever definite also than definite time It would be date. next next again you water, again bought before the favor of any Carter, on March 27th: On March fall of 1907. give crop pumps going.” land it is yet to make us, we which your we would have aas to on notice from although sent to from land not as we get have done so any give you along Mr. Davis in has we would contract, spring” (the spring; money one Campbell, where you say, view of the situation that we would have All that can, from me would that we in the Campbell’s we April 8, 1908, “We note possible. land at date.” water for that an from our result the said: canal that water would he one else given your Mercedes March directions crop and we are have had 25, 1908, Campbell, expression year.” execution Scobey. you impossible as used the that this we ean you directly we have but canal, later than water fast deliver to have water delivered from this “Mr. company to when * we have water you any in the Mercedes, never several at Mercedes at Mercedes time said: have past sufficient time to make what offered to us others, We 25th. A spring that no definite date could progressing letter of “I am in ** regard water there can do is to difficulty company. say To this Carter re- copy Lawrence in time to but as to the this put have On and we spent words, possible assurances did “I would been fall of the much you your claimed for us to name banks when possibly water will be notice from we Notwithstand- the company November assurance for takes September with the Campbell water in not have any assured 1908), to there. He any more anx- have been for a this letter water not him are November to the associates of obtain- positively receipt “with as- St. time and expect deed, also the by we shall ready has develop- reached not amake deeding time authori- have just * * any will de- amake we one at to thank continue prom- be to doing hurry recovery right, Louis the as writ- your time Car- very crop just say Au- beg as- as he in to or at * given you time when the water when year The work' is present set, liable then crop, only year irrigation. lays have been the first Scobey And actual liver they contends agreement knowledge verbal was an would render deed its laterals as the case eration and appellant case, pellant’s supplying price money which was different tract, for water does sumers. charge ed from water at a earlier date. The above say your make the the expect alleged purchased, and have that as its before we can now this made to water at the sufficient not show wrote, as we assurance that we would if we been Appellee and the fact agreement, advises authority statements contained it was appellant supplied therefor fall rate express ratification, authority representatives await above. to I only bought last assert Appellee was, positive to an easement us out disappointed verbal I do not know of such verbal before purchasers entitled to receive do we want the water and purchase reasonable do damages alleged deed recites as the facts contract and alleged not from the or letter from we us, at a appellant’s agents just It follows therefore supplied to other water con it in your set insists not have and this statement was progress this only any with notice of certainly unless subsequent contract and sufficient to December show that but to are assertion of an to “assurances” were designated time, specific terms hope comment to out regular price middle own failure to the future.” one else to we were verbal contract to de- would be limitation the price use of this land price a ratification of at rate, price pushed agents by law, you to agents. pleasure contract water estop from Campbell many 1908: “We where water to received sufficient time, expect secure a like manner.” which deed will accordance with in certainly without execution assured water charge time the $40 August. the time was collecting water at the statement of offered. make water at the land for for the buy your only and at have result have water others fact terms be another terms The record entitled to to deliver you (contrary) water as Campbell appellant' per acre, its terms contains claim to show nor express then land trouble I most it with consid- except to letter. a con which made. could to be deny such who paid fall Mr. one We not un- ap he (Tes. SOUTHWESTERN REPORTER 155 298 ment in favor of ure to furnish the water if it had $7,190. The that sum. strong able leged that the failure of and sufficient demand for appellant reasonable planting January recovery been pellant lee the purpose appellant’s cient water its desire the reasonable the have furnish during sonable terms and within the rights imposed was able division of contract. That ber 50, 51, 97, 10, 11, 12, 31 49 Thompson, E. 35, 36, 37, 2030; Thompson S.) ments C authorized Morawetz on Cook on But It ^[10] We come the water cabbage appellant, reason 619, L. R. A. Minn. o. W. 311. respective positions written contract was executed. 1, 1908, the above may January grown by said 25 Loan stated, one item court 10 v. duty set the water it had been the time Va. appellee the same a reason of been able to This Corp. 544, failed Bank, supply Cyc. 1076; error Nos. to use the L. R. diligence. out the said 28, 28a, well-grown canals 150 irrigating 38, 39, 40, damages by . 42, Ass’n v. (N. law found had the put have been such failure irrigation; Laboring acres; parties 52 N. disposes allegation 63, requirements growing provide Ky. 53 S. E. action —that between appellee, 166. § S.) 169; land was in to furnish the 140 now water A. appellee upon and is named. been 712; Thompson damage date obligation water on 64, net further demand, irrigate 399, 28b, 29, 29a, 29b, 30, 34, the facts 614, been furnished water to had Bank, W. same Ky. large crop 1, 2, 3, 4, plant Elk to the its land 151, 152, must 41, cabbage value ready supplied. the date it with water for the during when reason of the failure cabbage plants; Man’s so, reasonable notice 72 Am. St. 144, 150 S. W. Allen v. 908, planted and rendered 133, Valley That “was to furnish water appellant’s 42, the said '25 acres Corp. 181 Ill. water; found that fail- 25 acres of second be measured predicated upon quested 32 Am. St. appellee’s dependent to set them out the exercise of 130 S. W. 44, readiness for parties. January failure to so M. contiguous ability this item for within 153, it made plants L. R. A. supply 5, 6, was for the acres. Then water; damaged $7,500; would have be a owed upon Loan duties accordance at that time to enable it to §§ Coal Co. v. It 45, of breach on 817; & M. Rep. 245; 35, but that of period period was not consistent with the facts of 171, 172, 629-637; cabbage rigation was al- 7, 8, Decem 46, Corp. assign As we out of grow- which court is not appel- Ass’n, judg- 54 suffi- land, Realty upon Rep. depends rea- first had cedes Plantation due 965, Co., (N. ap- 47, to less we to lant N. is 9, § a persons, planting and that 20,000cabbage plants. judgment. Appellant water for what? It does not take an plants contains nished at once. Such plants Prest. & Geni. leaving Texas—Dear Sir: On bage Mercedes, every tion and following pany, Chaplin, may That, extent of two acres ed ration, cial court found that such which it is lowed month, on that plation before the demand for water was that the water at that time had been second, special damages court’s contiguous correctness of this gation company ering tiff, Appellant Answering 20,000 cabbage appellee conflicting immediately then hundred in their speculative be admitted that the farmer to have on and we existed, day. total Growers written notice water to owners of land pulled up Appellant of the judgment upon and on us about get water to that such date, but it is in if from now January Pres. damages existing advise letter: would notice cabbage Texas, to its Please upon violation not, loss knowledge pulled water at validity corroboration contends that nature, acres of the first of which evidence. and the fact that water to the received water a demand on the open nor with Mgr.” plants parties A. R. G. L. I. afterward since the court so found result us. unless the said Company, canals,” “Mercedes Plantation plants verbal contract with assails 1st is irrigate claimed Jan. twenty give plants pulled finding on, Shippers of the will be a total loss un- yet 5th Yours understood hire once. We have cabbage are the means from was advised that notice us and we January two if water is not fur- been in supply construction the time. appellee this item ordinary, served etc. And your these damages thousand and no five needed the water purpose judgment engaged got T. duties as very truly, dispute, transplant objection urged. were too remote this letter the situation judgment grounds: First; Texas strong had been given appellant previous notice was for about Co., the trial court well-informed that needs M. fears the awarded were prompt acres of cab- water. Got adjacent which would was cut want questions, the contem 1st, upon 4th $7,190. made; and, Mr. Lawrence, necessary, wrote Mercedes, were to deliver of trans- Produce. upon business furnish- corrobo- cabbage but the in favor an irri- we expert a fact atten- appel- notice about those those given 'deliv- plain- case, Com- Mer- only loss spe- two fol- off, up- re- ir- Tex.) & IRR. LAND CO. CO. 299 RIO v. MERCEDES P. GRANDE experience way grown cabbage trans- is have shown be the best which the mature veg- January develop plantation. Appellee’s and 5th cultivate certain kinds of letter of cabbage. ample etables, is if is There one of. which was notice to period animation, suspended supplied no as the be unable is was not to that ages naturally growing it would at once transplant cabbage plants, ease and and when .seed allowed to mature the are they separated parent subjected fu- stem for all the dam- are from the would planting, loss. ture it a strained out of such and would be n daily say holding necessary the and Nor was it unreasonable repeat separation few convert be the soil would If failed to fur- hours its notice. response living plants It in the into seed. would nish the water to its demand say daily charged stretching presumptions supply, a with no further to cannot be grow, negligence daily plants re- but it the cease because did did peat during a of their removal demand which it knew to be useless the time continued grow develop. and vain. earth to and the finely conten are [12] We come then But no such drawn distinctions complained damage necessary. cabbage planted tion that remote Cor too the of was on the was The speculative grown a otf basis devel and furnish land of and was and recovery. thijs customary oped manner to The determination and in the usual depend question upon they ready transplant stage into will much whether a the land.intended when it was cabbage plants it, prepared not the as were to to receive and transplanted upon contemplation ap- the 25 acres constituted in the all of which was pellee growing grew cabbage crop, were, they a in as oth at the when the seed time merely pro ground, planted, er in seeds which were rational there can were planted preparation plants question cabbage a to be the cess 25 is the were the question. growing crop acres land in the former relation the 25 acres in case, they designed transplanted. of another one rule for the measure dam which were to be apply; ages quite appel- latter, prevented if will the The act of govern. very fine, cabbage transplanting rule will and the The thus lee from the continuing process is difficult to the line demarcation was cultivation true, sufficient, cabbage locate. that It is not if were been it its act the same partake plants transplanted. destroyed of both the nature It was after it was growing crop. growing crop, If the of seeds and of a a the destruction originally planted resulting damage had been same therefrom question process prevail 25 in the of acres of a total destruction in case would thinning they required, growing crop. would with As this measure a to what crop. growing damages a is, out doubt be fact another time, How does con find the decisions we they actually growing upon siderably conflict, meas but think the in we appellee’s support weight of land at ure which has the authority transplantation necessary Justice laid down to be that development quality? Railway Pape, Gaines, their quite It affect their 73 Tex. in Co. v. says; plants not seeds “It seems is the common yet certain the are The court 11 W. 527. to acceptation word, general the most satis rule as a us that equally arriving- factory value it that as at the seems certain means of yield question they probable crop prove growing acres of land in 25 is to crop growing proper cultivation, ac such the common the value of constitute under ready sale, ceptation appel yield of the term. Neither matured when case, expense cultivation, as well lant nor the has cited us to of such also the transporta question preparation one, nor have found where as tion market. of its we discussed, making the cost pre between The has sented us difficulties difference been crop given probable and and in the market the distinction value of the the preparing, maturing, great expense concern. But we reached give cabbage plants there, placing will most eases their conclusion that then condition growing crop crops growing appellee’s with as much value of certainty by any other attained is a as can be as to the acres. fact, evidence, culmination is the finally The above method.” well-known cabbages grown by planting in this settled first and is now are the seed the rule Joachimi, place special Railway v. Tex. in a constricted where state. damage process sprouted that the measure and was held of cultivation are crop development stage in. grown in the value of to a where difference immediately immediately strong vigorous, before are market place ground damage specially transplanted after the to other then Railway reception. process damage. prepared This rule was followed for their Railway regular transferring plants Young, Tex. is as and v. of as much contemplation planter Carter, case latter 25 S. jury, ascertaining planting original held the seed or the as subsequent hoeing thus amount of allowed or cultivation of de the crop proce veloping cabbage. value of into consideration whole take labor, care, maturity, knowledge along the cost of lines which and at less dure (Tex. REPORTER 155 SOUTHWESTERN for alleged tended tends that its petition ground In its 13th this case—the show a This also 54, 165, water contract on the 25 acres. quiry fourth maturity. to leave the farm to and quired, he to be reasonable have plants plants do least to made manner, cabbage damages. far as it was not disturb the duty tive for court found for was quent overruled. comes mere or acres of proper Pape Railway way Ry., dition for time the ments 93, 362; attention measure Raywood, S. W. 155. [15]We come now to the third [14] It ^[13] go canals so, not the irrigation purposes, 131, 133, do reasonably adaptable v. 43 forth and reduced diligent. Cases. upon Freeman v. use from other use Under place, and also a of error Nos. that the facts set out therein did assignments it had rule announced in the fully in or near Mercedes that in the legal should have been sustained Gilbert, plants, Tex. conflict and a appellee cabbage v. disposes Supreme was, necessary diligently But the court etc., assignment believe of the waters We certainty damages procured appellant prosecuted damage extent what Kiersey, he made met the 173, 174, 175, 176, appropriation that reasonably Civ. Railway vicinity this view ever special exercise as contended question the execution of the written Milling right seek at once nearest market. land appellee, cannot disturb this finding. to minimize its 124 that 168. upon land is too remote sources, to recover. The appellee’s appellee, upon App. 448, liability Court acquired Field, of error are overruled. ninety-third assignments the S. W. requirements there were no exception 81 W. 19th reasonably diligent of error and found none that completion v. Co. v. other duties put attempted of evidence reasonable to do so found very acres possible the time and this court has S. Appellant’s assign Calhoun, bringing ordinary diligence, but was 135 S. subject, 434; by appellant, might have been manager the Rio Grande with its charter and water appellee’sneeds, plants 49a, 73, 94 most loss of the adopted reasonable January, Erp public McGowan superior right appellant upon damage crop and 177 S. 1045; case, its work Nos. Putnam v. to recover loss of Since would, (Sup.) appellee’s sive, present upon aspect W. profitable unable to 24 diligence, them to was not evidence thereon, a subse whether specula cabbage conflict waters, procure was re ninety- in con finding 74, above S. W. 1073; these court should have Rail con that not him can and and this not time 146 the in be 92, in its of the Courts of Civil so at public corporation, therefore, second, rigation business of found is not denied versal teenth, But an ment 1911. the case three tified. filed and the original. of ed an affidavit was a who proved admitting teenth certified ply expressed visions of Civil not mean ever else these statutes propriate from contracts to of error asserts that consumer has not by appellant, excuse right before June and mouth to damages contract. As said under their same of other statutes to v. person named, ^[18] [16,17] Appellant’s appropriate appropriate Barnard, it as alleging copy recorded, as is power been with its contract therefore mentioned are contention. sell Statutes, part.” Appellant as is instrument, This as a fact Assignments trial cannot and seventeenth assignment itself nor that company. incorporated irrigation error navigable copy introduced divert recorded, required by for failure to the water of such river. The thir- appropriated by deny it, in evidence over its chapter 2, that assignment part, of eminent that the waters support provisions also delivering law required by the loss of case 92 Tex. two 30, because desire sell was accept days wherein it the water. Under same, the'water of said instrument filing the water of had disposes because 1906. There entitled to receive the upon defeat its questions: First, “it could for hire and immaterial. The such nor is there stream, and, or, Appeals If vested under the law with when it is is overruled. plaintiff’s petition, excluded before the commencement affirmatively alleged prerequisite such an instrument to avail itself his negligent declaration of the same 107, law to be Justice having tit. fourteenth error superior right by saying invokes the assignments propositions. a correct Comply does domain; may reject article trial court erred well purported 47 W. recording (149 ground appropriate provisions affidavit was original S. availed himself Brown, appropriation,” of the Revised failure legally exempt mean, engaged was taken, being not lie is no acknowledged awas S. W. a after fifteenth, can “was, to the had with such a rule Rio Grande Rio Grande objection instrument. right copy accordance individuals assignment doubt that is not not filed in the water the court irrigation river had intention 714: “A of error. organize sued merit in of such to have x), in to com- 62a making such a instru at the person an ir What- inclu to the in quasi R. same, right a re Doty jus pro six any ap- for fil its do Tes.) & IRR. CO. LAND CO. MERCEDES P. GRANDE RIO itself plaintiff, exceptions already unreasonable, assertion that the state had tion tract. To both these of Texas” and pellant’s warranted statutes? The state n (cid:127)corporation desiring ceive benefitsthat follow ¡served n ¡supply ties (cid:127)could limit its ted is untenable. lant power rights mere fact that dient to exercise its dors vested assignments Rio less poration tacked as unreasonable pellant apply efits, waters have a n negligence, Kinney (cid:127)amount of (cid:127)so limit it (cid:127)do so to $4 ter, return for those that from it cannot alter the rule. ¡said: the evidence both. The court found that actual tract with a landowner for tract This clause in the contract nation, Tex. Civ. more than $10 between it present In Colorado Canal Co. v. providing 130 W. against any liability whatever, altogether [19] The supply that the ancient Grande possessed company company from its could water was fixed yet was much language of eminent superior water fairly appellant of the “If discussed then, corresponding position case. people, come to a time when it was powers App. and now damage limit in them the liability, 897; Irrigation (2d question remaining to a appellant, should Nos. and the eminent domain and the for and If because for and water them. negligence. amply supports was not Rio in no damages per per acre, regardless liability more Erp appellant appellee that were to a persons performance s. who law much a is not.tenable. domain and benefits the granted by equally impartially by a actually suffered, c. to 109 S. W. Grande, grant reasonable urges case, upon powers, incorporation. many case, liability what findings appellant took make than $10 accept relative plaintiff’s legal appellee (Sup.) 12. It subsequent person or could after riparian rights to the right limit dependent less use an extent Raywood, etc., Co., on there was and void. to Ed.) had not exercised so, not even for applicable extent In the contract nothing to status —that consumer water sum, still appellant’s acre for failure under such con 146 S. but it none the making McFarland, why yet grant furnishing may evidence. rights of its give appellant be liable for law' per acre, § charge. and so evade grants, for determi some rights, It not liability rights and should be admit- irrigation it that no such cor- We appellant the court has may right and du- are un- And it damage derived provide finding. irriga- result appel- in these clause under duty.” grant gross expe- laws shall con- ven- ben- con Ap- wa not ap- re- at and because tion to the of pellee tract particular contract on delivered it demand for water to its made no written tion mand of its ply time for These in as was raised cause it would have been futile to signments because it of that for ty-seventh, and after it was needed. a water consumer his opinion, it would be unreasonable to with the met the to toman be notice for water was April to was mand different. But contending that it had asserts that mand was not not water upon the notice ty-eighth thereafter, supply, lee was a could not ^[21] needed water request appellee’s petition, issue the furnish water farm; error, support impossible need for water when he with its written ninety-ninth, of the court claim that allegations appellee, April given. contend provided for In its 17th 13th, made allegations make Appellant, in crop; However, during failing did not January 19, do paragraphs are, in appellee’s any purpose; .that demand. as above stated and assignments lays great crop for water that water supply, ready are overruled. knew if is not not made until question 14th, 15th, appellant complains there application sufficiency other demands assignments required it had been on a certain thing it for the such is comply on a it could have therein are court’s necessary. Appellant does while it seventy-eighth assignments could be furnished at that on no water could be to use the seventy-seventh, May intended show law does not As disputed, was no sufficient evidence if it did appellant continue application needs overruling it was able time. 1909. The knew it was request designated before stress therefor, given 3d, not 17th, must be because with its written con give ample sufficient. appellant of notice day thereafter; ninety-ninth, finding appellee’s justifica-' is true that and that day is futile. That continually of error contract The given, had no water to The court accordance 16th it, for water making make a demand made a demand daily same, their failed brief, knew knew stated for water other and informed water to have contradictory, did to case. therefor, responded to appellant,on ground it would require day overruled. paragraphs that notice of the ac further allegations exceptions proper and seven irrigate were now not therefore, face able, They put notice to Nos. it would portions to the de to in this had, it require It comply merely do so. seven repeat fairly there failed appel make to found with com day, does fact ap be as de de be be a (Tes. 155 SOUTHWESTERN REPORTER language 'by findings was bound tbe fixed the court’s as the limit of thereof. Tbe contract between time within which the cucumbers could appellee provided by irrigation. should saved that But the evidence shows give “timely may for water notice” of its desire this water not have been furnished adopted by in the May 7th; accordance rules to be finds, until the court so and we irrigation company. Such rules were Assignments 77, 79, 79a, 79b, must so hold. adopted provision: contained for “All 79c, 80, 81, 82, and 95 are overruled. - applications must Assignments 65a, 66, 67, and 68 are over- writing blanks com- furnished They judgment ruled. attack the of the partial applicant pany, each shall state the awarding $12,000 damages court destruction of a irrigated, the location number acres crop cabbage. of 80 acres of crop same, ir- kind of to be Appellant undisputed contends that the facts day rigated, and the when water is wanted. crop, April 27, 1909, show that Every application shall be filed the office alleged damage time at which it was superintendent or delivered to the done, loss, was a total tender; ditch five but the shall have adopted wrong measuring rule in days within which to deliver water damage. specified application.” after the Appellee in time Although appellant in this has filed ease gave acquiesced in this and rule pages supplemental a brief of 737 and a brief notices for water in accordance with its pages, supports 22 assignments these Appellant terms. troverted 27th uneon- contends propositions error and the five thereunder testimony April shows on lines, with a statement of twelve and refers appellee gave regulation notice that transcript facts, us to the and statement of required irrigate water to acres of cu- 15 aggregate documents which in the more date; cumbers to be delivered on that 2,000 pages, than to for the matter with which May on 3d demand was made for water for support its contentions. We will not purpose; May 4, 1909, the same and that on waste the time of the court in such work. appellant supplied compliance in Pleasants, Chief Justice Court First cucumbers, these notices Appeals, of Civil in a recent case decided by appellee but that same was diverted to by court, proper said: “We deem it portions of the farm used ir- say that much of brief is taken rigate cabbage. It is further contended that up consequence presentation questions of no ap- the uncontroverted evidence shows that materiality determining in pellee put admitted water had been appeal. practice the merits of the days on the cucumbers within six or seven writing unnecessarily long briefs seems to be April after 27th would have been saved growing, pleadings argu- often produced average crop, and that was facts more than presented ments in this court could more cabbage to which said water properly designated a book than a brief. already was diverted lost. Prom these practice The lay is cause of appellant says much of de- judgment appeals.” determining in $6,280 allowing These remarks court for the loss of said particularly applicable are to this case. More cucumbers is error. assignments urged were, than 200 this error appel- are If the facts as contended case, arranged lant, uncontroverted, are so that in could not assign- some than a instances more dozen recover. But such is not the case. The court brief, ments scattered over first found notice for water for these other, “shortly reference or connection with April each 20th, to_ cucumbers was after” April 27th, raise same issue in different forms. This not on and tice that the next no- presenting appellate given May manner of 3d, cases to on was deprecated, and, May cannot be much provided courts too 6th, was first on but that the present if it were not that the case effect, head was so low was of little greatest importance, pres- May view of the flow of the first water was had on extraordinary development Every ent enterprises 7th. one of these facts was contro- Texas, we would verted, pellant holding Ap- refuse to con- and the court’s is final. present the briefs in their sider form. that the contends court should have assignments 65a, 66, 67, 68, May reference the 4th of found cucumbers was of on water for the they show no error committed furnished, that, the court. instead There is material rules which in conducting O, adja- difference between the it into B and laterals apply damage measure of growing, cent to which the cucumbers were partial past case destruction and in that the water those two laterals carried mouth of crop wholly destroyed. where The rule into laterals D and P Pape Case, cited, cabbage. support- down used above seems to be laid in reference and crop partially destroyed, except to a ed that uncontroverted in all evidence provided there this water was so doctrine announced now the the 4th May, approved rule state. which is the crucial assignments proof 69, Appellant’s matter. error Nos. the uncontroverted showed 72, May finding 4th, thp.t the water furnished assert appellee’s cabbage plant- days the time- within court that would be the seven Tex.) & IRR. GRANDE LAND CO.v. MERCEDES AMERICAN RIO P. CO.

November ed and dence. April 27, ing, watering, harvesting, overruled. all case, Sth to tinuing $1.65. From these market supplied said the not less than Its conclusions more than said sum of market from which cannot be puted evidence, S3, 84, S5, 86, 87, 88, 89, average price ue of the must be sustained. weeks, June April on 80 acres this March 8th to been furnished the failure to furnish water be erred ages by 20, 1909, $3; May 1st, offered 20th, $3; lows transportation aggregating ble the we can see no court could have court found as a fact: 15th, May 29th, and finding seven so far as is quently objects therefrom, April The court further $2.S5; April 10th, reason of the failure to the above crop season probable cabbage question. also that it contradicts : “At 13S, appellant cabbage for the loss of $1.65 the conclusions of fact 5th, 27 to June By 27th. The upon is The to this harvested, for the average price allowing transplanted that would eight less the amount disturbed, instead of the and that last of probable yield evidence, $1.65 to would have extended March contrary support $20 evidence Kansas April harvested $2.50 would have yield n practicable, $1.75; May 22d, possible theory upon assignments crop, On the to Kansas December, matters, and, days April finding further an amount measured therefore if water had been proper irrigation upon which we find to be the per usual prices applied May, 1909, 27th, $3; April 3d, 27th thereof would $1.75; 1909. These the court’s have matured after price would have amounted to contends that ton, March regular quotations It loss was cabbage $3 pounds City, Mo., found that this is not $3; contrary, at different aggregate “I as after- that is not the contention period expenses cabbage prior averaged nearly after $12,000.” Appellant should be 90, 96, 134, that measure. The City average from March fully matured, further find that if little over 450 subject May against $3.25; April June prices, from that subse of error Nos. wholly separated, actually 13th, $3; undisputed upon assignments undisputed per recover as dam produced the court’s own instead of marketing suffered before April 27, complainéd to defendant’s late cucumbers and reached the market at a cabbage $1.65 findings upon 8th, $2; May there is some first on or within' 5th, assignments the nearest market val “had water acre.” of cultivat water after price are as fol cucumbers these have been portion deducted.” sale about six time, which the the court times January, realized market- $1.50 cost of March from March 8th to are 1,600,- undis $1.75; there, all of from favor of $2.60 1909. 24th, from were case, dou-', con- evi- and 1909 Up- the the of was 15 cents 000 that April 27th, was- $2 pounds found to be vesting, watering, bage far as been the represent appellee’s that the proper $8,620, hamper, $17,240. to establish ruled. ferent could loss on the that the and for time they brought signments losses on some set aside and will be here rendered for the failure ceeded conclusions the reason ed keted upon there cause have been signments and in reference cucumbers are claimed in- erage [24] As to the cucumbers aggregate following damage sustained; pounds -138 relate which would have pounds which deducted from quotation 1,600,000 cucumbers. plaintiff this brought when The court found properly 80 acres no measure more favorable was plaintiff price the above-named was patches Assignments damage leaves amount. season, average price per hundredweight. Upon 862,000 yield heretofore found. The crop planted The cost of lack of matter is 85a and 170. $2.30 adopted. on account of $2,026.67, which, error, would have been the markets were to the 80 acres of of the whole season was taken cucumbers the measure pounds per hamper. $1 error, fact; hampers per after marketed from its five acres the net cannot fact, pounds, which from its first cucumbers reach to the admission of shipments, the market to the was ' 4,000 pounds cabbage. per very cucumbers, per hundredweight 738,000 pounds. earlier water, 2,328 hampers, average price-of water. cabbage $6,593.33. They theory, judgment April he suit were “The court in so far hamper.” Therefore the above damaged by appellant’s court finds would loss. the conclusion that was were not the sum of complain low conflict, for the this would leave los» to evidently entertained, that the cost of cucumbers, brought assignments cultivating marketing also arose error planting, are overruled. which the 27th, $17,240 24th) immaterial. The acre. If The court price. which, The ten acres of marketed before value of May the court found disposes deducted from afterwards, the court other and dif- from early market, average price and therefore cabbage, and the court will be damages, The evidence gross finds flooded, damaged to June price These to it leaves $12,000 Including Deducted said cab- $1.50 top price relate damages evidence the fact cabbage the av- that in loss realiz- would found- relate In so court over- were mar- 862,- seen or a har- pro- (the $8,- $8,- per 5th thq his as- be- as- or- If (Tes. REPORTER 155 SOUTHWESTERN months and ly appeared ness leading normal tails shipments, tions covered several months and such his memories When it is settled cable. ory The it was reference weights, able to as bills of fact, Campbell, T. M. and Theo. signments rence, Jr., The same jection error assails the court’s evidence. pert of which are overruled. permitted ner, market knowledge can on basis of ed dence of Whether there given at Mercedes dence of the value at other was statement could have reached those of The price some were shipped Campbell objection, cedes). at Lawrence trial was We see sustained damage ^[28] [26, there was not a market yes from written data made principal supported direction as were admissible. We on the value of truck and proper wherein of a business at the place Appellant’s ninety-first assignment 27] man up that a error objection no vice or no. to the at could result testify only or to details Campbell complained before Lawrence, that of the of error the Appellant Campbell can this rule becomes to this lading, manifest, were raised Mercedes, sold at is a is also quantities, remembered to the court that the record from goes nearest market. involving measure naturally Spur, reference f. conducted contention of 147, 148, 149, 150, say market, testimony and within permitted is a market for be tested carry o. a conclusion of this witness, ground question is said that admit Lawrence, within the b. at 136, 139, 140, 141, 142, these case, and, said as any competent involving dates, court, Mercedes and some complained issue, court, Jr. extending means of the witness’ in cabbage do complains involved can but that thousands of details Lawrence the evidence there was fourteenth that said actions of appellant. his in that can when of T. M. Lawrence qualified loaded written was a conclusion. because refresh his mem was the refreshing and Theo. memory which his testify, there, ground proven etc. unless specially appli the 80 acres of his conclusions If there was and cucumbers power think the data from these transac disposes weight him or' under there is other which testifying over several of therefore all were in produce of was transactions proper the witness. of on the knowledge. vegetables. be answer Spur data, It is well such busi * finding the court. was finding a market scores the court numbers, then evi ceived them. evidence. after nearest; markets over the evi and letters and the de cause of he was 154, all pounds is that an ex of the jected clear of as Law (Mer their man were fied as such of the court’s open Roy ears Roy 143, sold ob in laterals and in of and E. C. Green drought found as follows: appellant.” Upon stage nish White, the conclusions and 109, inclusive, appellant trifle too enthusiastic the evidence 118, 119, 120, 121, 122, 123, 124, gence ror, 91, 110, have been lands. The court’s will ject, and the written evidence 127a, 129, because the rence railway able ted as fact and the admission basis for the court’s ifests qualification “not dence that he refreshing him. manifests; ments from the tion of and permitting examined the agent upon not such as pose, overruled. “The Rio The 169th Assignments [29] These manifests and bills of error. water Roy Campbell, evidence, goods 132, 155, believe refreshed from therefore, say yield water water liable manifests the evidence throughout demand therefor. We will exercised Theo. passing through He the witness T. M. experts upon evidence, or other causes checked the knew such failure assignments from the retained their testimony Grande They the same the court Lawrence sufficiency this was the law tolerates for that sustains which is Lawrence, cabbage assignment shown finding upon 160, assignments they irrigate appellee’s crops; 130, changing of error made at witnesses to watering by appellee memory. telegrams concerning weight presented by assignments relate to the 161, 162, refreshed his was admissible. We have the railroads 113, 114, 115, 116, 117, were correct. The mind were river was at a which the bills of Rio shipment, language findings upon and other appellant assigns spring very error, committed no error the essential being carbon subject giving refreshed his hands as his of these memoranda of evidence of A. beyond Theo. the time cannot be disturbed. questions. they Campbell 91a, 156, insists that Grande, the result. No er at the of error subject all data book had been error Nos. 101 extended, were also admit raising 163, and 164 are lading in it was harmless what testify properly quali- witnesses, his cultivating Lawrence, Jr., giving are overruled. copy was sufficient consignees care and he swore preparing 125, proper could be prepared memory crops insufficiency subject, transported findings of caused perhaps the court testimony, complains which the control and Law.- very 157, 158, 126, 127, parts supplied of these the sub memory nor the to fur his evi- it was selling reach- lading detail times prob- ques- man- ship- dili- pur- low but but re- re M. so Tex.) GRANDE LAND IRR. CO. MERCEDES P. CO. RIO. & year. May pump- factured and sold. 1st Other its lowest Valley ing plants stage time was in at this the Rio reached Grande The lowest lower than been known to water, operate river had ever able to and furnish all needed Grande Rio pe- in and to use Rio river water Grande Grande be. The Rio stages, largest boilers, of water their volume at its lowest The river riodical stream. difficulty scale; of Au- serious did not in months comes down the gust, September, operate October, continuously in after which have so order keep through usually steadily seeping in volume declines the water the river April May, the canal canal when banks and bottoms. Defendant’s time in until some system mainly by taking melting con- causes a mountains constructed snow on the is annu- earth from the canal for the annual decline the center of rise. This siderable embankments, taking very ally expected instead of same from and is constant. From year pits naturally steadily leaving barrow firm each river has 1905 to 1909 the reached level; ground undisturbed, in surface levels as had the lowest a lower previously been, uniformly been, year being and has ever since of each almost sys- companies preceding. year custom of all other canal two feet below level of tems in ever constructed the Rio Grande Val- in in the river was But the water time, ley. sandy stage up On thus ex- to that account of subsoil the lowest lower 1909. pumps known except posed greater depth canals, probably since, in of such ever than seepage system efficiency pumping ex- defendant’s canal defendant’s cent, great required per lift hausted more than on account of the water cent, per pumped time, until, from May, the bot- the course of at low water diminished high tight by tom of the of the water and sides became reason water 1908 to lowest deposit pressure stages water, min- of silt and vast 1909. At eral matter low delivery solution, seepage, scale causes water. This and not the farmers, used for of was the reason the water is the boilers when why corporation operate purposes, great as in defendant had to boiler is about twice as early March, continuously. periods high boilers As water. May defendant knew actual observation “From until December seep- great that the age in its main lost had a canal rise of deal of trouble water, defendant filling canals with level 24 hours. inches canal, completed horse east in the fall of the two 250 main on which account oper- 1908, operate power power was able to furnish boilers at its station were whereby day night, incrustation still sandier. needed ated “Notwithstanding greatly facts, the boilers increased these known of scale put not install or order out of commis- defendant did and said boilers had to.be machinery year 1909, very pumps frequently in the new until the order remove sion scale. When being cleaned, attempted and never use its reservoir of boiler was oper- .purpose storing 365 acres for the was sometimes used to other boiler filling pumps pumps river, but fre- and its canals when its were out ate of the at the regard quently pumps I In to of commission. find: That the defendant both were idle. corporation pres- negligent providing scale, was in not an the formation of I find that the system approximate adequate pumps and sufficient of ence and of scale-form- amount machinery pumping, and that the use in of material the water the Rio Grande company by ordinary of care it could was known to the defendant have known pur- analysis year 1906, plant inadequate the had its in was means of the chemical capacity analysis poses, In in Au- both its estimated and in and that it had other * * * gust, March, 1908, August, pumps operated from its method of installation. The de-" 1908. The by contractors, company could, expense, 1908, at nominal fendant have furnishing knowledge its facilities for increased and great defendant had actual experienced during period in of from water the low of the river trouble was but believed that same spring by cutting scale, ciently portions effi- the off of system com- its canal there were means of boiler handled pounds takers. miles of main lime soda ash in the water There were used 4% canal, August, 1908, north main 1 mile to canal feed water. From July, down beyond attempted keep main the east canal the farthest scale down * * * attempt by purifier July, 1909, takers thereon. No means. it installed a water this unnecessary parts whereby was made to cut off was Rio Grande water system during period, causing canal this save those treated with lime and soda ash deposited main made on the canal as aforesaid. north mineral matter to be before * * * could, afterwards, ex- That at reasonable boilers and water entered the not pense means, proper- previously and well within have had been done. That such ly prepared system,'and February, purifier its canal could so was until not ordered subsequently treating defects there- 1909, although remedied the this method customers, engineer in as to furnish to all its water known to the chief water was. including plaintiff, president when water was needed and to the throughout year many years, them demanded also that such knew lengthy injurious many years or inter- purifiers had for been manu- 155 S.W.—20 (Tes. REPORTER 155 SOUTHWESTERN

, to sulted land its third of the stock. ure to The August is not to stock reveals nary negligence, matters complains 1909, plains overruled. company tions constituted view the their and also that findings clearly stock, stock for not port admitted of the court of that. sell ity accordance water would have testified abatement. Campbell pellant’s er of defendant.” rigate mission of The That ^[31] Campbell question F. degree sum of damages resulting appellant’s “a question so as care; and, awarding before suit was interest, in the because the the same Assignments above part” he spoken sole assignments to 10 acres evidence, case, were due transferred bill that he sale. buy, that he had “offered some” of it was service; Scobey had made necessarily connection, especially $6,593.33 They with its thereon and the and Lawrence before negligence It cause, and the evidence presented of the stock overruling conclusions Rio Grande failure measure Lawrence enable people. damages alleged E. show during April, 1909, if it To equally liable, as the find gross negligence. exceptions reserving July testified court refused Scobey, by the court. present solely contended court found that Nos. that he make a acres of are therefore overruled. that such at contract. The judgment filed. fault, cucumbers that all includes the lesser. he bargain irrigate furnish always have, appellant’s plea cause to such of fact guilty is revealed Scobey the sum of provide tried to sell that “in who it contends cause of $12,000 bought the stock whether July cannot appellant’s with the order bargain Appellant of no material cabbage during duty sum are as a of action to owned one- and 27 to furnish since it transplant offered negligence sustained. Appellant was ordi- least plaintiff's April, 1909, making permit buy” complain and also awarded ordinary cause acres July August, part weAs action, reason court’s $7,190 $6,280 amply great- lower time, com fail- sup- appellant. buy are subordinate to low the the ap n have. The statute ac- re- ir- pellee ter is a ing tion. to' whether without reference to ning through agreed neither inal tended such should effect, ages impossible duty judged not tion the water aught is hearing, contended this is immaterial in this appellee with water arose from the fact rights of trine as fact that we other whole Kishi Case the court stated the taking does er we tracts with water way fifty-fifth .The Appellee scarcity Appellant tit. reversed and is affirmed. are same “operating opinion. plant should accrue to inconsistent. On the failure, this consumers available. are overruled. contracts Appellant motions supply. that if he failed to do 1002. But the two cases are against here On Motion require R. S. 1895.” landowners among conflict assignment of error in the of water and furnish. discharge available also has- appellant, appellant’s consent, appears, under The his rice exceed contends we find no did announced, and maintained had It of both the appellant’s contracting The balance of the costs of between individuals where holding here rendered in The law appellee’s liability calls our of the water with not consumers, canal with a appellee. $4 cannot be recognizes an presented supplying Kishi perfectly clear, of a crop, may expressly dispose maintaining appellant by who have that, provisions per The court said: “For Granger Kishi, aggregate constructed rights of provides Rehearing. merit this contracts public but is even failure holders. case, acre. parties attention contrary, simply sufficient limited, concluded that appeal motion for re- adequate to and that the fact that so, providing, in statute distinguished contemplates this duty.” as it is not lateral no contract its conten- those who make con an to furnish applicants same We and dam- reason of judgment is under- used and was the own- favor of therefor $20,063.- But all opinion, chapter are ad- prorat in the irriga- and it in no think gives orig run- con doc- wa ap- he

Case Details

Case Name: American Rio Grande Land & Irrigation Co. v. Mercedes Plantation Co.

Court Name: Court of Appeals of Texas

Date Published: Feb 26, 1913

Citation: 155 S.W. 286

Court Abbreviation: Tex. App.