267 S.W. 298 | Tex. App. | 1924
This is a suit instituted by appellant against appellee for $1,670, alleged to have accrued by a failure and refusal of appellee, an irrigation company, to furnish sufficient water to irrigate certain land being cultivated by him. Appellee filed a general demurrer and special exceptions to the petition, and in a supplemental petition appellant set up exceptions to the answer of appellee. The latter were all overruled as well as the exceptions to the petition, with the exception of special exceptions Nos. 9 and 10, which were sustained, and, appellant refusing to amend, the cause was dismissed. The two exceptions sustained are as follows:
"(9) That plaintiff's petition shows on its face, and by reference to the lease contracts between John H. Shary as lessor and plaintiff as lessee, attached to and made part of said petition, that plaintiff's rights to the possession and use of said lands, and of the appurtenant water rights, thereby leased from and by John H. Shary, were expressly limited by the following stipulations: `And it is further agreed as part of the consideration for this lease that the lessee shall have no claim or demand against the United Irrigation Company for failure to furnish water for any cause whatsoever during this lease'; and that said petition contains no allegations explaining or qualifying the apparent meaning of that stipulation, nor does it allege any facts by reason of which said stipulation should not apply to plaintiff's demands herein, and wholly bar assertion of the same in this suit.
"(10) That plaintiff's petition does not allege that the stipulation aforesaid was ever abandoned, modified, or waived by said John H. Shary, or by this defendant during or after the terms of said leases; or that plaintiff's application and payment for water, and defendant's delivery of water to him, were made otherwise than under and by virtue of said lease contracts (and the permanent water contract therein referred to) in fulfillment thereof, and subject to the limitations therein set forth."
It is alleged in the petition that appellant had leased certain land from John H. Shary, adjacent to the canals of the appellee. Shary was the owner of the land, and was also president of the irrigation company. The land did not belong to the appellee. The only question presented is, Does the attempt of Shary, as owner of the land, in his lease to appellant, to exempt appellee from damages for failure to perform its duty as an irrigation company, whether through negligence or otherwise, relieve it of all liability? That an irrigation company is liable in damages for a failure or refusal to furnish water to contiguous landowners for irrigating is too well established to bear discussion. Borden v. Trespalacios Rice Co.,
"Therefore, where a person, association, or corporation is under the duty to furnish actual consumers with water, either as imposed by law or under contract, and has failed in the past to comply with such duty and to furnish the water, an action at law for damages resulting therefrom will lie by the party injured against the party having so failed to furnish him with the water."
This is the well-established rule in Texas.
It is the contention of appellee, however, that "the owner of land, to which permanent water rights are appurtenant, created by water contract with an irrigation company that has undertaken thereby to furnish said lands with water, may lawfully refuse to lease same to a stranger, except on condition that such person, as his tenant, shall have no claim against the company for failure to furnish such water, and a lease contract containing such condition or limitation is not in violation of any principle of law." This proposition is based upon the existence of facts that are not found in this record. The record does not disclose that any permanent water rights had become appurtenant to the land leased by Shary to appellant, nor any other of the imaginary facts upon which appellee bases its proposition. A number of authorities are cited to sustain the proposition. If the imaginary facts were real, however, the authorities cited do not sustain appellee's proposition. No such doctrine is enunciated in Kinney, § 1025, pp 1832-1834. Kinney cites the case of Moore Canal Co. v. Gyle,
"The question of how far an irrigation canal company, organized under the laws of this state, may limit its liability for failure to furnish water to persons who have the right under the statute to demand such service from the company does not arise upon the facts of this case. The appellee is not the owner of land * * * adjoining or contiguous to appellant's canal, except such right as he obtained by the lease contract entered into with appellant. This contract is the charter of his rights, and appellant's liability to him must be measured by its terms."
In other words, the owner of the land and the water would have the rights to make such contract or lease as suited him. *300
Whether such holding is law or not we are not called upon to say, for no such facts arise in this case. The fact that the owner of this land was the president of the irrigation company, or even owned a majority of the shares in the corporation, did not make the latter the owner of the land, or make it a party to the contract. This case must be treated in the same manner it would be treated if Shary owned no interest in the corporation. The doctrine of the Canal Co. v. Gyle Case should not be broadened, but should be confined to the facts in that case. The case of Vineyards v. Ft. Stockton Irr. Co. (Tex.Civ.App.)
The cases of Northern Irr. Co. v. Dodd (Tex.Civ.App.)
The judgment is reversed, and the cause remanded.
Irrigation companies are quasi Public corporations, and cannot limit their liability to the public or any number of it by contract. In other words, an irrigation company owes a duty to the public, and cannot make a valid contract to exempt itself from the performance of such public duty. 3 Kinney Irr. Water Rights, p. 2718, § 1511; Colorado Canal Co. v. McFarland,
"The power to contract, here given [in the statute], to the owner of the plant cannot, if the business is to be regarded as affected with a public interest, be recognized as absolute and uncontrolled. Common carriers and others engaged in public callings have the power to contract, but it cannot be so employed as to absolve them from their duties to the public, or to deprive others of their rights. Rights are evidently secured by this statute to those so situated as to be able to avail themselves of the water provided for, and those rights it is the duty of the owners of the contemplated business to respect, and the power to contract, under the well-recognized principles applicable to those charged with such duties, must be exercised in subordination to such *301 duties and rights. Reasonable contracts are what this statute means, and not contracts employed as evasions of duty."
Undoubtedly the contract made by Shary, as an individual, although he was president of the corporation, was made with a view to protecting the corporation from the effects of a failure to perform a statutory duty. It was a mere subterfuge, but it is clear that if the corporation could not legally make such a contract no one could make it for the corporation. Appellee could not evade its responsibility to the possessor of land by contracting "that the lessee shall have no claim or demand against the United Irrigation Company for failure to furnish water for any cause whatsoever during this lease," and neither can Shary execute any such contract for its benefit. Appellant was bound in rigorous terms by the contract to obey all rules and regulations of the corporation, and to irrigate the land, but no one, neither Shary nor appellee, was bound to furnish the water to irrigate. It is indeed a delectable contract for Shary and the corporation.
The motion for rehearing is overruled.