*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 242 W. 312. Giesen Civ. year whole of the for the [2, days pur flat of 3] Just a few having appellee so breached (on chased September at foreclosure 1922), the contract conditions of the terms the Rio Grande Canal named, appellants particulars' ab- Company to Cameron sold its entire Improvement Company, County terms of said contract from the solved -Water money chap sums thereafter. virtue of district created dispute. practically Lon evidence Revised Statutes and ter the contract owner when Hill was the O. was the amendments thereto. November, presumed made November cánnot such case it conveyed out, corporation carry Hill the land would. successor Jr.; statutory law, predeces- H. Master- March its the face Hill; conveyed obligations, obligation, son, Jr., land to John siich sor’s express because conveyed directly implied, August 14, Hill A. or statute, provides: T. Lomax. of our face land under con- furnished No existing or or to chapter cre- “No district created any demand made therefor provisions under of this ated shall appellee party during to, pur- While or to become have chase, assign up or position or seek to en- or hold furnish been in have to any benefits from the fruits or force or receive September it was not 14 or any private between land time, position furnish water after that prior corporation or made canal the any cannot recover and water sale, thereafter district, rights but all formation of such parted, because it had services privileges possessed such dis- ownedor corpora- properties another arising inherent in such dis- or those trict are assess- whether immaterial chapter. tion. The statutes of of this trict virtue years provisions or for the whole made as well as the ment had' limitation two pleaded in bar of all actions it- not, hereof such sale recovery other as- water rents or position it could not fulfill where self in a or pri- accruing land in district such sessments or to not perform to furnish such district can- the formation thereafter, even demanded were it any acquire lien such enforce for the for a flat rate called the contract- prior any existing 'by years period mentioned district, entire and cannot such formation suit, however, any prosecuted This prosecute date. for it cause to .thereto, ment would ment of foreclosure payment, tract. favor of after. contention that offer nary water tanto technical upon assess law, the court 1,448.46 made performed, 5107— tion where raising give T. effect thereto. suit or canse of water taxes the formation close unpaid obligations contract because acter are private vision lands and such stances, brought of the improvement are now tion September prior cannot avail generous Tes.) While that sale We do While It must [4] We think there perform 1922. These services law, cannot by special that could plain (Vernon’s assigned appellee so to we are any testimony, whatever, contract.” is for its foreclosed *4 41a). taxes in not water assessments contracts was authorized funds acres. useless about lien on the formation which considering, provision be held be seen do it could or, hold of other charges. upon was intended to Legislature has thus not subsequent may not, itself of such law', determining just think there districts Ann. Civ. St. for its obligations equivalent foreclosing assessment not rather, assessments such O. unambiguous, the court was no court of the broad Acts for the to discuss such prevented made willing, liable for the formation constituted a service. Hill, appellant’s reason of the it assume and be, that when any not Ball over stood the owner of.the companies, district legislation. were not it use, in any rights under with reference then affirm this it has what was would tolerate. or his perform its merit demand was equity, to a libe were, under and taxes and was in a claim of erred demand, BALL v. was did not ready up to both the lien on term of the con- If, accruing the reason require itself Supp. assigns, reason of such assuming and made a breach, what amount appellee sold any subject Call. improvement also carry out its districts clear breach Ball’s cross- made on the so to by force of the circum- such cannot fore recover show these debtedness been made appellant’s equivalent September prohibited Its in a plead plain pro- 1922, art. any levy, we taxation error of Guaranty however districts, corpora- BIO GRANDE CANAL CO. prior accruing Sess. breach, willing regard to said double that speak, as we there- terms prop- judg judg- to be char John of must posi- posi- ordi- very such that pro any possible (25&S.W.) and any íd p. into Mi-. first between the ance pellant Ball. Ball August 17A ticulars mentioned and include further recovery, this record that would warrant lant reformed and rendered as definitely, reversed and remanded. the same will be self certaining appellant of the bank and that he isfying ror in the This rected to that he judgment that amount with the stockholder; gage agreeing was individual son and render erty. pelled closure sale. Masterson terson, 5th date when the erty the water “On the Appellee agrees, [5, trust an protection day 'court final acquired judgment the deed from John A. Hill take from the 1st 6] John T. Lomax ratably due, insists appellee the clause of the whole amount. to better judgment T. erred indebtedness evidence proceeds arising only the tract of land in which Jr., proceedings Lomax may pay Lomax is an interested, provide ground that Ball. and not also be reformed as 1V24 Bank of San interest and how much to refused to allow this the amount of due secure said bank in the judgment claims shall be reform accordance September, became the claim. that Lomax for 17/24 chargeable protect himself, might parties; objection the entire claim. no as to avoid the files consent within 15 it of the interest of Masterson. should be in tending was alleged should show .what amount secure the Farmers’ State judgment only of the entire water that there relating that beneficial payment was intended as a mort take of its day said in order reply under permitting to determine should fix as to the amount of the payment- Appellant, and then credit should be further any be so reformed as to otherwise it; to show that of counsel: officer, director, John'A. Hill debt 1922, present any indicates held the complains from the order of purchaser January, 1922, than the terms of the Benito, and that he him sale was respective balance after sat- made which, reduction sum or amount accrued, the introduction method of as when H. Mas- of certain in no him to show requested cure for the bal necessity amount, proof over to merely disposition appellant’s portion pleading to him on foregoing, nearly -appellant of which appellant the title therein. be com- will be Master- definite to said charge record appel- right. is to to be prop- days fore- that par- this cor- for' er as' 256 SOUTHWESTERN REPORTER

'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