14 S.W.2d 364
Tex. App.
1929

*1 appellants, Supply vor the dissolution here- Districts Water “In all Fresh injunction formed, ordered. formed, wherein now tofore appel- require- in favor and rendered petition such conforms injunction 78S2, setting the neces- lants and dissolved. ments of Article project, feasibility sity such hearing notice given by clerk, in Article as directed same Revised Statutes Civil 3164.) (No. ux. v. BOST et et al. EDGAR hearing it was posted, Amarillo. that such of Texas. Court Commissioners’ found 30, 1929. requisite Jan. petition signed proper finding feasible, construed be therein, and the lands that same a benefit ordered an election 7S87, forth, purposes Revised Article set election and at which Civil Statutes majority in favor voters voted of such hereby District, declared are meaning, legally in- created Chapter, purposes of this tent and respec- hereby validated are same proceedings, such and dates tive times recognized with the and established are Districts, in such several- forth boundaries issued thereunder voted bonds and all legal declared validated are districts, obligations -binding such according terms.” that all discloses in this case The record requirements statutory for the creation these original district a fresh-water complied in the creation act had been necessarily follows It district. district, appellant invalid subsisting created, a valid and is now first district; said district issued the bonds district; obligations valid are necessary to dis- of taxes collection ' obligatory district; should officers enjoined performing such official authority In addition duties. opinion Case, of this cite Matlock S.W.(2d.) in that case 360] rendered [14 court questions, the certified answers after Ry. State Nav. Co. & and also Louisiana . W. 462 petition properties district were certain named allega high a value. too assessed petition, understand as we tion Is why the as an additional in*no invalid. This fact should be declared way district, invalidate tends to way prescribes in which relief can be law given assessments, but such issue in this suit. determined cannot be Shannon, W. T. Brothers & Ochsner in view of the vali- hold We therefore Pheiffer, appellants. petition all of quoted, dating failed act above Morgan Carrigan, Britain, King, Ama- action, granting to state a cause appellees. rillo, error, injunction refusing judgment of lower to dis- RANDOLPH, originally injunction, temporary J. suit was writ solve filed in the district Hutchinson coun- here rendered in fa- should be reversed and *2 Q. privilege 1928,by and of de- ty, Bost ate rental and cover on ferring against well plaintiffs, a the commencement of wife, tbe bis as Edgar, Margie twelve ner man- months from Corporation, said date. like and M. F. - parties, payments agreement and like- tenders By tbe or of as defendants. tbe case was of may court tbe court a tbe commencement of well transferred to periods county. ferred for like of the same before Potter successively. for of it jury, months is understood was rendered And without a agreed recit- and ed only that the consideration first and defendants herein, payment, appealed covers court. thé down to have privilege trial court to the Tbe dismissed case was aforesaid, payable rea- said first rental is as as son that tbe pe- option extending acquired also the bad lessee’s of defendant by any as other tbe Oil riod aforesaid and all the title to tbe rights by an exe- conferred. of tbe virtue ¿bove upon-said corporation “Should first well drilled on tbe said cution dry hole, said said tbe described that Be then land a corporation thereby to event a well is commenced transferred if second on said months from land twelve Woods. expiration period original petition, for which the last rental paid sought termi- rental has been nate shall a decree Margie ; by parties as on to the lessee them unless lease executed a certain both assignments expiration had be- or twelve before the said mesne which ¡months Corpora- of rent- resume the shall come tbe tion, give to als in man- the same amount and the same lease it and which portions provided. thereof ner as And it is hereinbefore full —certain later. here in agreed pay- resumption quoted will be spe- by general rentals, that the ment as above answered Defendants denial, special governing paragraph general preceding exceptions, a last the hereof the effect cial acquired, thereof, plea rentals that the Corpora- just shall in force continue title of the the tion pleas special interruption pay-" other no in the rental There were to state. said ments.” .not is stated pro- said lease consideration The is terms said As agrees and cove- the lessee be that therein to vided: nants : agreed “It remain that this lease shall is lessor, free the credit of years “1st. deliver to To in date of five from force a term may cost, pipe the con- line long gas, of nect his oil thereafter oil or or and as one-eighth part wells, equal of all them, produced land is from said either of prem- produced from the leased saved the lessee.” ises. from the rentals the record that pay Dol- Two Hundred “2nd. the lessor paid, To on or were lieu of advance, gas lars, year, from for the day June, each of- before the 11th three in each found, gas only while years, 1924,1925, each well where same sor that no premises, and les- paid -used off rental for or before on any gas year. ensuing appar- cost free of an lights begin well all for all inside ent of a well stoves effort principal dwelling during pfeparations house on land said therefor by making payments. the same with connections time his own lieu of rental evi- said expense. risk at his the well own dence discloses that the defendant Woods en- pay gas produced “3rd. To tered lessor into contract with the any premises for the a well the land well used off the ( nn ) one-eighth controversy early gas produced rate of some of all time premises and Dollars sold time the building 1927.' as to Woods testified off said used, derrick, during gas building necessary of a which such shall be payments shack, chinery placing said in to be made each months ma- three land, ma- advance. on the said that the day chinery “If well be commenced on said land was connected June," up engine all, ready June, or lease shall less pay to fire before the eleventh actually time, the well was as to both un- at that terminate spudded date, quite haul water before shall in. He had to or lessor, (cid:127)distance, or tender or but a later a water well ‘was to the lessor’s little credit in First National drilled. Bank at Texas, successors, good faith which shall continue abundantly depository regardless changes supported as the ownership land, the der- the Hundred and at the time Woods of Four the sum ground, Dollars, oper- could rick and 6%00 attorneys gave nied that notice have extended the parties party rental, ot some instead different or to hut $62 expended in the commencement had better not make contracts more was the well. Tyler, going forfeited. as the lease Morgan, point that At Bost testified A. who is *3 this Mr. S. L. John party plaintiff, had built been the result shacks and interested in the derrick the land 11, attorneys tes- He also 1297. of the June at bar and of the suit “spud- tified, minimizing open of the for late in the fall of 1927 that the character been the stated ding the had site write such a let- that done he did in” City. ter to a Mr. Dickenson of Oklahoma well. that, facts, minds, far question so think we There our prior Under these is no gathered record, plaintiff’s declare to June as concerns the that 11, payment 1927, plaintiff rent the his inten forfeiture for the had declared lease, lessee the the tion after that the failure on to forfeit that al and the well, drilling begin operations a- for it. the that to these he stated he had forfeited commencing preparations being true, the evidenced and his declarations fol drilling operations filing lease extended the lowed 26, 1928, of contract to' the the Tyler years, Corporation five term full Oil un the term, diligence primary be an extension which would der further exercise continuing drilling without fifth or last for the the well. Defend of said lease the Corpora payment Tyler Texas of rentals. McCallister the Co. ant succeeded Oil Woods the (writ W. 859-861 lease the tion in its and title the refused), March, 1928, therein cited. authorities 6th before three months expira a down In this case of the the date paid upon primary for a number of leas- period. tion testi of the lease controversy, es, including ready, able, the lease fies that as owner was the effect of to discuss proceed drilling, willing the with upon contract the the extension doing so the he was deterred from years; it nec- term neither is for essary full the ixendeney reason of the suit appellants’ contention to consider Tyler Corporation, Margie Oil the down the conditions seeking himself, plaintiff was drilling dili- kind and gence lease. Under these con cancellation of the required completion circumstances, plaintiffs were ditions and for our reasons We state the well. will now diligence position not in demand deciding considering questions. those as owner development further or of the for oil Tyler Corporation of the gas by well, drilling the continued of the assignment, made a contract diligence required. no further Con drill a well on this Woods to Worth, sumers’ 71 E. Trust Co. v. Ind. Gas 163 the derrick land. After had 489; Mining Guthrie, N. Weaver Co. v. above, ground, as shown App. 108, 118; 189 Mo. 175 S. W. Leonard v. Tyler against the Oil Cor- suit Woods Co., 749; Busch-Everett La. 72 So. drilling contract to cancel Co., supra. McCallister v. Texas judg- damages. The court rendered for ment trial Woods, For reason that the defendant drilling contract, agent Tyler of the had be- judgment. gave a.money sea- In due gun production aof well for the issued and had an execution 'son gas prior of oil and to June 1927—that title to interest in and the by extend- thereunder, Corporation sold pri- ed contract the lease to the end of the bought sale in said lease. and at said mary namely, period, purchase by at such was on plaintiffs their declarations and day March, 1928. suit, as stated excused the defendants that such sale over the fact no contest diligence from well—we hold that rendering in the further of the n purchase in Woods title and whatever vested court erred trial had in judgment plaintiffs. in favor of the lease. stated, For reasons we reverse the Considering, the evidence judgment of the and here render- plaintiffs’ declaring at- of the tempting conduct judgment nothing, assert a forfeiture the defendants plaintiff he had testifies that find that the defendants Ed- Woods and Tyler before June with Mr. a conversation 11th about the status gar prayed recover as them in their pleadings. president claimed to be rendered. poration. this conversation Bost informed Rehearing. Motion Afterwards be forfeited. lease would ap- the evidence that he claimed told fully developed pears questioned, plaintiff, not to forfeited. The cause, rehearing motion judgment part, render- of this court aside, cause and remanded for a new cause is reversed Fryer Paso, Cunningham, of El trial. pellant. Sweeney, M. V. Ward and Jos. U. both of Paso, appellee. El I-IIGGINS, Building J. The Fisher Hotel (No. 2245.) v. RAVEL. WASHINGTON city El Paso is owned the Terra- Appellee zas estate. room El Paso. Ravel Texas. ground floor in which he has *4 upper a shoe store. The floors the build- Denied March appellant Washington are leased to used aas hotel. Appellee’s store was flooded with water coming damaging the floor goods. stock of Washington resulting damage to recover the stock, alleged to his which he $212.36. negligently It was the defendant carelessly permitted a faucet or toilet to flow occupied in one of the rooms and used him, fendant and controlled and flood pellee’s premises. Judgment was rendered Ravel’s favor $150, Washington appeals. from which propositions submitted, All of the ex cept two, in different forms assert the evi negligence dence is insufficient' to show causing injury damage. only evidence offered was testimony 'He Ravel. testified: morning July, “On the of the 12th of I no- my ticed some water run from above room on my I merchandise. came down store running my goods; and water was water, was get inches of I and couldn’t help me clean it so I if.ad moving my work about three hours mer- chandise. I went back to the store and mopped up people water. A lot were in looking the store at the water. following morning, “The I called Mr. Wash- ington damaged come and look shoes; he went and looked and he told me to shoes of the boxes and he would in the afternoon come back and make an ad- justment. I took the shoes out the wet boxes I them adjustment. him laid aside for to come and come, make the 1-Ie did not telephone “After I received the call and coming came down to store the water was hotel, coiling down my running, room. still not as pouring much It had as before. down. Washington and control of * * * the floor above me at that time. Washington “Mr. runs the hotel. A hotel people stay, people pay where and where something room, suppose. the, I I do not is; peo- know what kind of a I know stay ple People spend there. come there and