*1 Faye it, give retain the able to been expressed in our final conclusion views and January 24, opinion on 1931. filed herein concluding following the mo- is said tion, to wit: suggest respectfully court if this “We ruling on its former adheres to judgment in this court rather that- render say remanding for a new trial. We than further because we do not know testimony be adduced another that could trial, expenditure would be useless and it expense attorneys for both try in the trial the cаse court. “Wherefore, appellee respectfully prays that judgment the former heretofore entered aside, judgment this court be set affirming court,
entered of the trial alternative, judgment that trial court rendered rather than remand- ed for a trial.” new Appellant, therefor, prays in a motion judgment appel- be here rendered for accordingly judg- lant. It is ordered ment heretofore rendered in this cause re- manding the сase to the trial court be set aside and and here now rendered setting money judgment aside the of $950 appellant’s favor under his alternative pleading, vesting affirmatively him full possession title and in and to the pleadings tract of land described in the parties, together with all costs of suit in below, appeal, the court as well as on for all appropriate process may issue. rehearing.
BUCK, J., sitting
CITY OF PORT ARTHUR v. YOUNG et al.
No. 2058. Appeals
Court of Civil of Texas. Beaumont.
March 1931.
Rehearing Denied 1931. *2 ration,” subject as- the same to сonditions fol- him in his sumed
lowing conditions: additional city public “To and as a be used for park pleasure ground, pur- and for the poses of amusement and recreation the enjoyed purposes public to be such for city generally, having, right the said adopt regard regulations rules and reasonable obligates property, to said etc.—and by acceptance itself and dona- tion, preserve property use the forеver objects hereby conveyed purposes forth as set in this “Obligates keep property in rea- itself to enjoyed repair, state sonable used and public generally place as amuse- for ment, pleasure, and recreation. “By acceptance hereof, recognizes rights acquired by existence of certain person, same, etc.—and will not disturb etc. Railway Company, Hada, —sets forth Pier Company, Roller Coaster and Port Arthur Company, Amusement Port Arthur Pleasure Pier similar to Company E. to C. Dunstan, 157, page 102, Deed recorded Vol. Records, County, Jefferson Texas.” day September, 1916, On 20th pleasure pier leased the property held, used, E. Dunstan to C. pleasure enjoyed by pier property him operated prop- him as a and to business charges public for the use osition of the accommodations furnished them. The lease did not with by him to purport to surren- Mr. der to Dunstan absolute control of the only give right property, him pleasure and maintain thereon devices erect halls, skating rinks, such es, dance bathhous- Wistner, all of and V. J. In Baker etc. connection with the Dun- & lease Mr. Shivers appellant. obligations Arthur, i certain towards stan assumed Port maintaining property. physical condition of the Harrison, both Jas. A. Parker S.O. charges But no whatever were to appellees. Beaumont, for going required property, nor for the use of WALKER, J. such, property as for the use of the April, 1916, day Port 10th him. On the furnished This lease conveniences was of cuted Company, day April Pier its deed Pleasure run to 1923. On Arthur in the 1st conveyed writing, June, 1924, E. Dunstan the to C. of Port Arthur exe- case, property pier pleasure issue to Dunstan another lease to the same upon practically property Dun- of Port Arthur. near the the same situated condi- subject property tions, 1926, condi- On stan took two operated by Port Arthur made a third government permission Young States of the United of this same to W. lease for a' term of ten par- rights years, all other interested with years Young of this deed the Previous to date to an of ten extension ties. pier assign pleasure had been or additional pier, strictly long part on a as a lease thereof. conditions charges business-basis, pub-' practically previous made to the same as all By furnished. On the lie the entertainment the terms of the the itself leases. conveyed day obligated the same Dunstan bound and same erty of Port Arthur maintain the Arthur, appellant a safe municipal capacity corpo- times, pro- herein, “in its all condition at with the
3R7 during direct no rental should be result thereof the vision hereinafter or out. was out of order set the time the injury accident account of wilfully tortiously “The defendant bridge, and that *3 bridge repair closed said and failed same repaired no rental was out and of order operating (cid:127)and to maintain same in a safe con- paid, of the terms for the time should lease would be extended but that dition and did not intend maintain said bridge operating ain safe condition and bridge working To under- out of order. was that reason tore down and said dismantled lease, stand this said that thе clause bridge and defendant never intended when pleasure pier lo- was bridge said was torn down and dismantled by upon one an side cated island bounded keep or when it failed to same safe con- that Lake, by the Sabine sides and on other plaintiffs dition and when notified said immediately ship channel. This lies island bridge by keep could not be used them to adjacent Arthur, bridge operating said and to condition way bridge pub- referred to was the required maintain same as in said contract gain property. lic could access wilfully but defendant breached said lease Young regularly particulars This A. deprived lease W. was in those contract and by plaintiffs au- of under said in addition to the value of thority duly by passed plaintiffs’ property by of thereof, a resolution lost reason duly Young W. A. profits plaintiffs council. Afterwards would have made had assigned Eirkmeyer an to O. R. interest complied defendant which least with said lease the lease. After the lease executed damages plaintiffs say amount at stipulated regularly paid rental. lessees They $200,000.00 plaintiffs and have been improved repaired hall, and the dance damaged $200,000.00by in the full sum of skating rink, organ, bought a an built built reason thereof.” merry- bathhouses, purchased park, a a ball go-round damages The claimed consisted of the loss .wheel, and all of ferris whiсh were profits by contemplated of benefits and pleasure pier property, and located furnished and lease built erect- and convenience, use, and pleasure pier property, ed them using amusement resulting bridge. from the destruction of the Also, pier property. convenience unexpired por- Profits were claimed for the improved public, the lessees roads ten-year period tion and for the ten- leading property. to and These year period upon allegations extension improvements were within the reasonable plaintiffs option would have exercised contemplation making lease extend the for ten large money. and the lease cost sum alleged Plaintiffs the due execution of the conveying Eirkmeyer Young died after W. an stituted lease; pleaded alternatively that, and because in- the leasе. This interest suit receiving conduct of by widow, Young, his Mrs. W. A. and them from time time the consideration for Eirkmeyer, legal grantee, his and lease, against O. R. as the permitting the lease and them to equitable make the and owners holders costly improvements lease, on the faith of the of Port Arthur for estopped deny validity. for breach of the conditions of the city of Port lease Arthur. The condi- by general The answered defendant and fully pleaded. the lease were special following spe- demurrers alleged as breach was follows: pleas, presept cial as issues of fact legal propo'sitions urged October, the same general under the “On or about the month of special (a) pleasure pier bridge demurrers: said was ordered closed erty trustee, City plaintiffs was deeded of Port Arthur and were lease, as trustee had no to make permitted to use samе but were ordered (b) City bridge The lease contract was any not executed under said not to use said provision requiring -charter purpose pleasure pier the authorized it be connection their election, (c) City The lease was thereafter sometime Port authority resolution, acting authority executed under Arthur and those under its required bridge, the charter that it dismantled said tore it re- be authorized out and ordinance, (d) an that for is now further there at answered moved provided special defendant, penalty the contract all and in violation of said failed, keep thereof, and refused to section 3 declined said defects operation bridge in a safe condition for was as follows: “The as which lessor shall required pleasure pier bridge they do in said lease maintain in a safe con- times, provided down, all and in violation thereof condition at tract tore dis- bridge, thpt thereby said no rental shall be mantled removed de- lessor stroying plaintiffs’ any working time which said the value of lease and the any property placed pleas- on account of value of their ure on said order accident or any plaintiffs therein or in- and caused suffer a on account defect might April 1st, 1926, be unsafe or for use after further unsuitable thereto length for such this said under time terms of this- be added to the ods lost elapsed closing proviso preceding shall has since of said next 5th, peri- year period Arthur on said Port October ten specified agreement,, Answer: “No.” in this said 1927?” ‘one,’ paragraph so as to extend numbered “Special proportion to No. 5 Issue said lease of this life bridge 'be- reason the said time lost money, paid mow, if “What amount order, provided the lessee reasonably compensate plain- fairly writing notify lessor shall bridge profits, any, if result- tiffs for loss closing working order is at time out pleasure pier ing bridge 5th, of said *4 engineer shall lessor’s and immediately period of time from October and, bridge said examine expiration 1927, until the first working actually if order, him be found period years April 1st, ten 1926?” bridge have shall be deemed said “§32,980.00.” Answer: working from the order been out of given said is until said of order notice “Special 6 Issue No. engineer that said have certified shall (e) you Special working No. Issue “If have answered a safe condition.” is It was further answered years contemplated in twenty ‘yes,’then, money if what amount of 1 reasonably compensate plain- now would tiffs for lease was an un- city authority profits, any, any if their result- loss of reasonable exercise had,to ing pier Upon closing property. these alle- said City gations appellee void, October Port Arthur on insisted the сontract 5th, 1927, period- years plain- (g) for the of ten second further answered that It $1,- contract, said covered contract?” Answer: had themselves breached tiffs and, they damages, the had if suffered 000.00.” had not been waived because claim claim was made “Special Issue No. 7 thirty days after within therefor “What was the on Octo- reasonable value waived, and was therefore accrued 1927, permanent 5, ber placed of the propositions under this but no are advanced on Port Arthur Pier Pleasure pleading plea. and issues raised erty by Young, together with the re- W. jury fol- to the as evidence were submitted lows and answered as pairs betterments, him, indicated: permanent improvements on that were said leasing, at the of his to-wit: “Special No. 1 Issue “§15,000.00.” 1926?” Answer: plaintiffs you in “Do find this case Upon in verdict was entered option exercised under said would have their plaintiffs $3S,980, the sum favor of with pleas- said have cent, per judg- from date 6 interest years, period of ten for the second ure if the pleasure pier duly city per- has ment. The of Port Arthur City Port Arthur had maintained appeal, plaintiffs its fected cross- operating condi- in safe judgment. against assign period said first all times tion at proposi- assignment error or There is years?” Answer: ten “Yes.” jury attacking be- tion as the verdict support evidence, that is without “Special 2 Issue No. assignment say, us that no before chal- find, 5th, 1927, you “Do on lenging findings October when with- City stopped support, plead- traffic over out ings that under the pleasure pier bridge, undisputed judgment, that the said evidence ap- sáfe or' unsafe was in a condi- should have been pellant. favor of instructed Answer: “Unsafe.” tion?” Opinion. “Special No. 3 Issue twenty- presents appeal Appellant under these its closing pleas- you “Do find after Twenty eight proposi- propositions. 5th, pier bridge to traffic October ure 1927, present legal questions in- City taking Arthur used dili- due appellant’s special volved in demurrers reasonably necessary steps gence in Discussing pleas, above con- stated. repair bridge?” Answer: said “No.” given tentions the order state- above all ment, it is our conclusion that of them “Special No. Issue . 4 are without merit. contemplation expressly you find that it was “Do deed of stated that city, its “in both to the contract was deeded to the Also, suit, pier bridge capacity municipal corporation.” that said as a
389 very language clearly grant appears deed face of the property from the It gave right, given in trust hold the it that in that that the for the was to place right regula general public adopt be used “as reasonable rules and regard amusement, pleasure property. and recreation.” tions in This was the adopt grant gave given legal “to The deed reasonable rules construction de regard partment regulations its council property.” held this for a about A As fourteen third grant, erty, by not in the the terms of the reason sustains our construction of deed. powers, general governmental in. knowledge its is a exercise of matter of corporation, municipal capacity private as a cities and its not towns "the wasj prohibited by general operate pleasure nor laws individuals concessions public parks their amusement of the nor the statutes Constitution charter of the state from there of convenience leasing property. general public. If far- So right, know, power this want denial of that to make such con power in the must be found deed tracts has never been in the denied cities support general рroposition management parks has full This control general public. v. Ellis 43 C. J. 183 and of Belton the benefit be There (Tex. App.) ing nothing gift denying and Henrietta 254 S. W. Civ. in the Country (Tex. App.) said, v. Jacobs Civ. Club we think *5 Looking delivering executing gift, W. 137. then to the terms of S. the deed of grant, appears property parties the to the it that was the had in that that mind the ¡of open general discharge the be public. to accommodation the by could the duties assumed it to fully рrotected public public by delegating The lease the the a these duties to respect. charged in this No was to fee be suitable lessee. gain property, to nor leave to access the to it. There is no merit in the contention hours, At all reasonable under the terms of that lease was void because not author the lease, any public the and all of the members by purpose. an ized is true that 3 election held fоr that right property had the to and leave enter the 7, by chapter 6, section of article pleasure. parts property at their All of the parks, the it of charter is that public were reserved for the use of the ex bridges, public property and other of the used, cept parts improved, by those held by except are two-thirds vote to be “declared inalienable a lessee—its the such as devices dance quаlified taxpaying of vot hall, bathhouse, wheels, ferris etc. These de an ers at for.” But this election to called and held there improvements vices them were connected with of has no this lease because it was in- no clause the charter enjoy essential the use and relation property ment deed of under the terms of the pleasure pier prop an sense alienation of the property Without them the was еrty, purpose manifest its was to assist only So, granting a barren waste. to the discharging its contractual bur operate lessees the and maintain dens. devices, it is clear that was chapter 7 “No franchise Section 6 of article 3 doing nothing grant; not its commanded provides: or but, contrary effectuating pur was avenues, streets, parks, bridges use the poses grant. question is, The then Was public places on, through, either city required by improve same, granted or under or over the shall be property operate with own its funds and except by ordinance in accord- through agents, power its or did it have the provisions of this ance charter.” delegate duty lessee, this to a suitable Appellees plead specially that the lease was question? was done the lease contract in authorized a resolution and an not parties executing The intent ordinance. Under the clause of the charter delivering the deed of must answer this just quoted, appellant insists that alle- question. Only a short while after the deed gation made the lease void. We shall dis- not parties was delivered the thereto executed charter, cuss this section of the as it relates between themselves lease similar in its lease. As execution had rights obligations to the lease involved the execute to make the its failurе to They suit. afterwards renewed .this provided by it in the manner lease. These two contracts remained force constituted, only most, charter at the an ir- and the under them and, regularity rendering the lease voidable for ten Mr. Dunstan was a bid merely not void. theAs contract was void- appears der for this contract. It thus that able, conceding given all the force that can parties themselves have construed the appellant’s argument, estopped, under gift and, think, ques we answered the pleaded proved by appellees, facts beyond tion ing accepting erty through Dunstan, all doubt that in deed validity. deny its deed, By copied intended section 3 of the contract operated by should or appellant could be contracting against and above was not Further, suitable lessees. against think total destruction nor 390 cross-assign- appellees’ have discussed keep com- We injuries out such as would appellant point, has length at because time. ments an unreasonable
mission for ruling assigned against construction, the court error follow because must This purpose erty operated testimony permitting the cost oral as to have the contract was jury park, submitted continuously aas upon question passing 7. Without not could without the and gain objections, improve- sufficient costly merits of these say is thereto, and the access testimony immaterial appellees been have ments jury determinative issues submitted did not contract As the worthless. rendered improperly bridge and influenced the could have not provide specifically time the jury against appellant’s legal commission, defenses. the terms within could be of section had in mind it must held excluding a err in court did not This issue time. reasonable copy from the office of letter written jury question an- sent to Major Schley detailing the conditions of against appellant. swered engineers. as found his appellant’s con refusing merit There error No was committed law, .twenty years, following question: matter tention that submission an unreasonable dismantling such constituted “Was .of Neither City void. render the contract as to Port Arthur a contract?” breach general im appellant’s law question nor the charter law aris This ing submitted issue any specific poses as to time. restriction the construction of the contract. clearly remaining propositions are with appellees’ point discuss we-will At this merit. cross-assignments in re court erred appellant assigned Since has $10,000 fusing award them against jury, that, verdict $15,000 answer to found law, judgment as a matter have should Appellees entitled were not 7.No. *6 favor, been rendered follows The value of recover.this sum. judgment appellees’ court lower day October, erty 5th rendered, favor, affirmed, evidentiary. Appellees not purely su accordingly it is so ordered. date, to recover pleaded the entire the contract for but and-prayed Rehearing. On judgment profits for for for judgment This issue was of the contract. af- entire life the lower court appellees’ $38,980, favor in a found very firmed shown the sum of the amount profit transcript. rehеaring ap- make this substantial sum. To On necessary appellees pellant have been our would use their calls attention to the fact that judgment $33,- entire life of the the amount correct contract, 980, by appellee sup- Under the contract. terms which is conceded expiration permanent ported by at improvements district certificate clerk towere revert to the with to effect. It is therefore ordered that appellees rehearing granted remove their other the improvements. the motion extent Having judgment correcting recovered manifest profits transcript, for appellees for the entire life ithe only upon profits $33,980, can hold these the lower court be affirmed in sum of cent, per per conditions the contract. Under con with per interest at rate ditions cost of betterments and annum respects the date thereof. In all other rehearing, manent did constitute motion is over- damages. element of ruled.