*1 REPORTER SOUTHWESTERN paid for, water, furnishes provided to distribute when manner in the such easement law, with to a sufficient for a consideration a agreement, is, condemnation that subsequent assignees landowner being 6505, S., 6504, R. under articles a flat for water such services whether the possession of the lawfully and in thus be used or not. purposes its Question, for premises in <&wkey;254Irriga- may 2. and water courses Waters railway company — creation, corporate company’s system tion sale held breach remedy invoked harsh not be ousted (cid:127) furnish water. in Certainly not be disturbed will here. irrigation company, bound Where an given op an until possession lawful such portunity years, period furnish for a contract to rights, of its to be heard its an created sold they are. whatever by Acts 4991-5011, prohibited Rev. St. arts. assuming the rail- If are correct Sess.) (Ver- (1st Called c. § acquired way company Supp. 41a), the asserted non’s Ann. Civ. St. art. 5107— compa- assuming obligation nothing by law, from nies, of other provided manner prevented company sale com- conferred more was performing from a its contract constituted easement, together pany with such than an thereof. breach way right situated on materials necessary adjacent construction, operation, in the <@=»254 Irriga- thereto as were and water 3. Waters courses — company pro maintenance tion held entitled to recover Beyond tanto furnished sale of railway before and roadbed. tracks system. company acquired railway this, no inter- company That an disabled had on underneath minerals est in the performing itself from fur- sys- right right way, or re- to mine nor the nish landowner sale a of its premises them, move prevent tem to an a district did not railway purely pur- any purpose than recovery pro equity tanto services it pur- pursuit poses. of those inif And performed up to the time of sale. injures, unlawfully takes, or de- poses it <&wkey;254Judg- Waters and water courses 4. company, stroys asphalt — property of ment in in for water held suit erroneous remedy in damages. Oil has its the latter failing adjudicate parties. Co., W. Tex. 157 S. Oil Co. v. In on a suit contract to recover for water McDonald, S.) 268; Lyon (N. v. A. 51 78 Tex. R.L. irrigating a furnished land for A. 9 L. R. S. W. year, having certain the claim accrued on Ry., 459, 25 S. W. 86 Tex. v. Muhle Davidson January L., defendant Ry., supra. owner, having acquired and the land hearing during shown it is a fair on foreclosure defendant B. another, erred, decreeing acquired railway company and foreclosure and the court has sale, rendering by law, provided way manner might B. L. in favor of be forced all sums questions then, course, different protect in- his undivided presented. As those here discussed tract; terest however, stands, we hold that the record being L. B. company’s petition asphalt is meas- when the under the terms construction, by appropriate rules provision ured property, sale of the with a that the entitling present proceeds satisfying the com- it does not pany case balance'of giving claims be injunction, to B. first to an opportunity railway an <&wkey;254Special Waters and water 5. courses — granting the order For that reason heard. defense, deed that absolute injunction reversed, will security, was intended as cannot be asserted general order denial. defense, granted. action to recover for wa- irrigation, deed, ter furnished for absolute curity Reversed and rendered. face, on its was intended as mere se- legal liability debt and involved no being defense, grantee, plea asserted GRANDE CANAL BALL et v. RIO al. CO. <@=3254 error, and water courses 6. Waters —No 7002.)* (No. al. et in action recover for water furnished for excluding irrigation, testimony that deed Appeals (Court Texas. San An- of Civil mortgage. as a intended Appellees’ Motion tonio. Oct. 1923. action to recover for water furnish- Appellants’ Rehearing, Nov. 1923. On irrigation purposes, ed a tract Rehearing, 1923.) Dec. Motion for testimony excluding committed in (cid:127)error was <&wkey;254Irriga- water courses I.Waters one defendant that to the deed — offered company’s original premises, .absolute him, consideration for party in- held sufficient contract. water contract to mortgage; only pleading companies Irrigation in their nature are tended as being corporations, obligation by quasi public demurrer defendant see same KEY-NUMBER in other cases <E=For refused *writ error *2 Tes.) . BIO GRANDE BALL CANAL CO. (256 3.W.) general requiring denial, and a Lon O. entered into a written Hill, parties, bringingin new and the other irrigate land, owner of the rely having right on réc- 1,520 excluding land, acres of therefrom ord title. portions “such of on account thereof impracticable or elevation otherwise be <&wkey;l56(l)— Con- and courses 7. Waters plaintiffs’ system”; from held to furnish water for grant against pleading, however, only sought to foreclose subse- enforceable quent purchaser. 1,448.46 the lien on acres thereof. contract, an irri- under which recorded provided owner, that the company gation for the was service, to Rio Ca Grande land, purposes a tract "of Company, assigns, nal' its successors or granting in favor of an easement effect taking, privilege demanding, the or or against the land using any system, from an said part the owner and to his successors on every yearly charge rental nual for each in interest to wa- and charges, land, either as and it was enforceable ter acre said whether water is taken obligation run- a covenant mutual created annum, not, per per payable on $3 aeré against ning land, sub- or in with the every January day the 1st of each and sequent notice, purchasers con- actual advance, which should bear interest structive. cent, per per at January rate from annum cent, year, per of each with 10 Appeal Court, from Cameron District attorney’s alleg additional as fees. It was Judge. County; Hopkins, B.W. ed that tract are conditions con and terms of the Canal Rio Grande Action appurtenant to the land and should against H. Ball anoth- Thos. and and others er. run and said lands bind and the owners plaintiffs. Judgment Defendants assigns legal represent thereof and appeal. Reformed affirmed. and thereby expressly atives ed the lien creat Houston, Ball,, Ball, Merrill & the terms of the said appellants. Antonio, Robards, land, the; M. San secure said Graham, Canales, Davenport rent, duly & West and water properly ty which contract was Ransome, Jones, Browns- all of & Williams recorded in the records coun appellees. ville, for where the lands are situated. petition alleged then by the transfer COBBS, conveyance suit instituted J. This said mesne ¿ appellee, Company, Tex- Grande A. Hill Canal Lo defendant,John T. engaged corporation, prior of max, January alleged business as furnishing purposes, water recover of John T. Lomax that of said lands on that the said John T. seeking date, was liable to cent, per $1,994.52 plaintiff interest provid with 10 sum for the fixed water January 1, 1922, per per against 1,448.46 and 10 annum the contract ed in acres cent, land; attorney’s fees, charge on flat based said water for the contract, year cept long past unpaid, written due and ex 1,520 Jr., on acres of Masterson, land in defendant H. county July John Lomax on $2,- owned Cameron had on the sum of seeking January 1, foreclosure of 350.86 and interest thereon from provided for, payment; here the contract lien to the date of claim contract, 1,448.46 on of land written embraced Lomax and acres balance of for the said water rent had against attorneys John T. hands for collec against tion, sought H. Thos. Ball and H. and due, bal attorney’s Jr. with interest ance fees. jury only pleading tried The cause was John T. Lomax establishing plain-
resulted in a demurrer was a cent, $2,173.47 per pleaded in- demurrers, debt tiffs’ terest besides Thos. Masterson, Jr., fur- from date of that he and H. became attorney’s fees, purchasers properties day $217.35 ther on the 5th decreeing 1,448.46 September, 1922, foreclosure of lien on the of made that a foreclosure sale, county with order with a de- acres sheriff Cameron on date, day November, of Thos. H. Ball over cree his the 7th codefendant, Lomax, conveyed and all sheriff lands to pro- pellant Masterson, Jr., forced" sums that and H. in undivided 4,648 5,- portions tect his undivided land. said tract acres Masterson, Jr., 352 acres and that defendants, appellants, appeal- now debt, any, Both accrued judgment. them, from said ed Brief- necessary ly, should, personal the salient facts for notice are corporation against 'November T. Lomax and not them other oases see same KEY-NUMBER
®c»For
REPORTER
256 SOUTHWESTERN
quantum meruit;
by purchase
contract
for
it is based
owners
are the
entirety,
gen-
prayer
is a
as an
but
sale.
foreclosure
eral relief as follows:
necessary
to set out
pleaded,
will
since
defenses
prays
all such other and
*3
“Plaintiff also
disposed of in their order
special,
discussed and
relief, both
which
further
ques-
assignments
principles
equity it
of
under the
show itself
will ever
of law and
the
the
discussion
to,
thereupon. Appellant
entitled
and for
which
of
tions of
raised
law
pray.”
requested
sum
no further
be
of H.
undivided interest
to run
the
irriga
law
[1] It
well-settled
but,
any,
Masterson, Jr.;
if
it be made to
companies organized
purpose
of
solely
run
interest.
undivided
nature, quasi
irrigating
are,
lands
pleaded
about
or
holding
corporations,
public
,persons
by
December,
commis-
an order
of
contiguous
their canals are entitled
lands
to receive
matter of
to
county,
Was
of
Cameron
sioners’
companies as a
water from
such
County
Im-
Water
created
provement
“Cameron
for,
right,
paid
limited
when
6,” including
No.
District
by prior
other limita
contracts or
such
plaintiff’s petition, lands
described
obliga
imposed by law. The
tions as are
day
September, 1922, the
14th
on the
plaintiff
of
irrigation company impose upon
tions
anof
canals,
conveyed
pumping plant,
its
when
itself
readiness to distribute water
irrigation property
water
to said
for,
required,
paid
is in
a
a
and this
itself
thereby
improvement
in-
its
No.
district
consideration for
contract of
sufficient
contiguous
carrying
capacitated
itself
out
pay a flat rate for
landowner to
assignees
agreement'
with Hill and the
water
used or
such service whether the
be
years,
for 25
legal
furnish water
So, then, must
se
not.
quence
follow a
of
created a
the con-
original owner,
breach
Hill,
assignees,
Lon
O.
tract;
ceeding
thority
pleaded that such suc-
further
same
and his
had the
corporation
au-
without
legal right
appellee keep
main
to have
obligations
ir-.
assume
of
during
tain the canal
as
the contract
the life of
rigation
ing
be-
November
compel
it had to
of the wa
raising
funds
law to the
limited
ter rate
the owner. While the contract
Further,
purposes.
that it did
one,
permanent
for
not
said not to be a
be
year
any part of
yet
running
contract, privilege,
is a
or
1, 1922,
beginning January
years.
period
West
purposes,
not recover the
App.)
hence
'682 which Lomax would quiring He was therefore pellee hence constituted Lomax. Catlett W. 844. possibly had entered requiring ner knowledge a ing than a requires of a very max Tex. not pounded Rowland, would have Hill to title to the testimony. S. App.) ent state of the the beneficial interest purported be volved serted Ball were then court, the against that mitted shows an absolute likewise tended made the further tion that testimony, terial, plaintiff shows [7] If the Had it W. show v. a mere testimony sought defendant John reason permitted certainly John every ground upon duly would concrete by plaintiff, and in addition thereto for his plain 191 S. Johnson, and the defendant 405; Lomax it; upon speciál as a mere no to to exonerate absolute to him affect the objected and of from the conditions case deed on its defense been 15 S. A. Hill of record. new 100 Tex. rely legal liability defendant Thomas objection that, was security why required De concerned, conveyance pleadings, have a mere W. at variance protection proposition defense £o parties. true denial, face to upon W. Shazo John T. 44 Tex. Civ. and there to land affected no stated, pleaded the defendant to said so on its conveying secret security 369; appellee. answer of answer. title into anything no defense to rights defendant deed or T. Lomax is said 394. There was Starr, to be elicited evidence to for a far A. Hill absolute plea the Lomax that a servient counsel.” v. to who were in no man- ment be, trial, appellant Lomax, and after the ground McLean v. testimony was imma- holder understandings, Lomax which 99 W. gross Any defense, face, question Eubank since the record upon show to which 70 Tex. debt land, sustained defeasance else S. the appellant chargeable The bring Moody said to to deed on Thomas H. true holder a debt had been land, said App. 436, between question pro- error objection him, of the land, it could not John T. Lo- presents permit support said than objections “merely estopped, as intended to absolute parties title, Thomas Lomax before the (Tex. 1112; appellant, independ- the deed from reconvey. said deed, and Ellis, & the deed a covenant the acts nothing, proven, was’ in- in- be had enforceable as parties what it in the by the be Co. v. with show- urged *5 deed, claim ques- 7 S. each per- Civ. which Irv him was ap- ac as- 79 to be 98 able Tex. creates the 482.W. pellant Lomax, covenant created his risprudence 2335; the sale Lewis fault during real R. the purposes. believe ing tate, sence must pany favor of the Hill lands debt, Minn. 1129, cessors in tion on the fect sonal site to create necessary peculiar, Giesen limited to tion, quotes 205,W. hands thereof, ligations sonal “The As We find no merit The It had The contract privity C. debt and obligation price existing lien, very Harris v. C. Hill thereunder, notice, foreclosed. as 14 with which between L. covenant to brought v. Powell fact liability; theory (Tex. equity 1 R.L. A. 33: creating p. 1125, Ann. they the for1 careful the the land of indemnity properties, 6 S. Cyc. those here, 114 W. Such contracts interest, obligation. Pomeroy, part ownership running actual or least, from Nalle v. (4th Ed.) one Civ. furnishing effect enjoyment supplied the Cas. 125. contracting parties. are here to always into existence the lien N. such, W. running p. 443; lien, he the § sued of Lon axiomatic person to such easement or the of all contracts entitled investigation although pay yearly covenant,” and in App.) they 39; in the whom to create an easement the existence of the con- each of whom assumed from save easement, as well as with 'the an incident mutual is obligation by privity subsequent purchasers constructive. The de- privity against Civ. Sjoblom vol. are in dispensed owner with only compelled 5 Am. 242 primarily C. Hill Fears contributors with, Grande Canal Com- are overruled. purpose him him assignments 15 appellant in themselves Paggi (Tex.) 9 App.) 5, pp. liable S. W. 312. L. R. A. Tex. exist property to the. whose default question to reimburse owners under inclines us to privity land are the v. St. v. Dut are have the ef to of estate.” is, ordinarily, one property. and his suc- estate, Equity 205 S. W. Mark, Albea, liable for made, land, Rep. prerequi occurred does not West charges. enforce- proposi- definite support sought reason paying to obliga- (N. its ab- in his virtue arises from debt, is run- per per- 103 ap- but Ju are es- off ob- S.) v. a. 7 § Tex.) HILL STATE BANK v. GUARANTY PEOPLE’S (256 I.W.) I cause, agrees out, pointed re- unless- now herein the errors For duction with- of said indicated and authorizes herein filed a in reformed and remittitur is your judgment amount honorable court to reduce days, so that rendered, reversed recovered in To court as follows: trial it will specified disposed as reduce the total in the remanded and cause judgment $2,390.82 $874.17, from indicated. herein principal reduce the amount of remittitur unless remanded Reversed and $2,173.47 $794.70, to reduce filed. is attorney’s fees $217.35 $79.47.” judgment remanding Our Rehearing. the cause for an- Appellees’ Motion trial, theretore, aside, other judgment and the set appellees mo- filed their case the this court, consequently, trial agreeing motion amend the reversed, ámended, here now and reformed opinion, but particulars mentioned our so that Rio Grande Canal by motion met so was do tender do have and recover of and from tne rehearing on the whole appellant Ball for a pellants $874.17, the sum of with interest prayer case, judgment rendition of judgment from the date of the of the trial Likewise, in his favor. court. re- Lomax, appellant, hearing inotion for a judgment reformed in also praying the case reversal Thomas John T. him. money opinion of given in the the reasons For compelled said Ball the De judgment case, court in this the can be here rendered. terms sale of his thereof, in satisfaction reversed, is re- and the cause trial court shall have his over par- new trial between all the manded for a the said John T. Lomax. ties. is further corrected and re- remanded. Reversed and formed, remaining so that balance *6 satisfying the claims'shall be over to Rehearing. Appellants’ Motion for On appellant Thomas H. Ball. difficulty judgment, being this court found reformed, account so rendering for a definite affirmed. in amount, a un- Reformed cause was ordered reversed and affirmed. Company filed Rio Grande Canal less the days, stating the within 15 remittitur do, remitted; attempted amount but lump definite sum. state did fact, instead of that view PEOPLE’S GUARANTY STATE BANK (DAYTON meeting BANK, definite STATE situation as Intervener) (No. 1003.)* v. HILL et gen- remitted, al. filed a should amount that' eral appel- did motion for new trial. So (Court Appeals of Civil of Texas. Beaumont. rehearing, motion lant Lomax whereupon his file Rehearing Nov. 1923. Denied cause for we the'entire remanded 12, 1923.) Dec. a new trial. Pleading <&wkey;93(l) 1. up set —Defendant files motion Ball now second separate inconsistent pleas defenses in rehearing, insisting we should enter counts of answer. judgment for the amount indicated up Defendant set in his answer as Rio Grande Canal Com- remittitur of pany, many defensive matters advisable, as he deems company likewise has filed separate pleas counts, if embracedin joins rehearing motion for Ball in his inconsistent, with-, long so as each is consistent ' entered in ac- motion that cordance court in itself. original opinion with the of this Pleading <&wkey;258(3) 2. sep- amendments —Trial indicated in re- the amount arating pleas forgery and fraud in ob- mittitur. taining deeds held admissible. motion of John T. Lomax curing defective, A trial amendment an- overruled; rehearing heretofore by separating plea forgery swer of from that his time view of fact that but in obtaining permissible. fraud in deeds Mié error, ply sire, may again for writ de- conveyances <&wkey;266(I)Allega- 3. Fraudulent — jeopardized by ruling, procurement of fraud in tions of deeds held motion consider overrule sufficient. this date. Allegations defendant, in a suit in the appellant Bail, in motion of The second bill, a creditors’ nature of that certain deeds respects than all other the procured by representations pre- were false overruled., grantee, defendant, they they another tenses by grantor Canal Grande should be executed and that quitclaims, releases or files motion said that it “this its sufficient remittitur Mié same eases see and KEY-NUMBER in all
<@=»For jurisdiction *Writ of error dismissed for want of