*1 jury doubt, actually intent of the ones should not be new adopted except extended, nor con- established ones with policy siderable caution. that With this in mind we conclude justice will be better served in the instant similar cases disregarding creating conflict, not the answers even though given they conditions attached violation corresponding to the un- issues. thus avoid the not at all We likely possibility findings of a final decision based on jury did obviously not intend. At same in- time we do disregard juries crease the likelihood instructions, will nor discourage in the least practice of conditional submissions nor, judgment, materially existing in our add burden jury retrials of cases.
Naturally holding displaces our any express implied rule may above discussed it. decisions conflict judgments below are reversed and the remand- cause is ed for a trial. new Opinion delivered December 1956. Company Glade,
William P. DBA Glade Construction v. Arthur E. Dietert Et Ux No. A-5756. Decided October 24, 1956. Rehearing overruled December (295 642). Series *2 Rouer, R. E. Johndroe, Jr., Goodrich, S. G. Robert H. John Gano, Morgan, Earl Worth, petitioner. and all C. of Fort for The Appeals holding Court of Civil erred in the con- tractor was excavating done while plaintiffs’ storm sewer on property working while under a con- tract City with the of Fort Dredging Worth. North Am. Pugh, 255; 196 Currie, S.W. Northwestern Pac. R. 279 1057; Pac. Russell v. General Construction 2d 1109. S.W.
..Cantey, Hanger, Johnson, Scarborough & Gooch and Jack Wessler, C. Worth, of Fort respondent. proposition On that contractor was liable cited Black
Baker, 706; King Com. Schaff, S.W. Laundry Co., S.W. Ideal 2d 801. opinion Mr. Justice Culver delivered the of the Court. Respondents, wife, Dietert and petitioner, recovered Glade, to real property. Ap- The Court of Civil peals affirmed. 286 955.
The of Fort Worth contracted with Glade to construct a storm sewer through line a residential according section plans specifications prepared by City. The was to furnish the way and it along staked out the area
gully constructed. to be ravine within which the line was speci- plans according progressed Construction Glade respondents’ July property fications reached trees within entered thereon and three bulldozed out City. Thereafter, area staked out matter within by respondents minutes he was ordered off the immediately equipment moved men therefrom. de- already owned a 5-foot easement across fendants, acquire apparently by failed to inadvertance had way. necessary Then the additional five feet of having negotiate City, agreement respondents, failed proceedings instituted eminent domain and on November 1953, deposited by the made Commis- amount of the award registry Respondents sioners in the filed of the court. alleging entered at on December upon the time Glade *3 trespasser. pleaded in their he abate- relationship his contractual Fort ment with the Worth premises his the direction and that entrance on the was at appropriation public lands for and constituted an use. brings any up point
Petitioner in the absence negligence or wanton or conduct the contractor willful where performs municipality his under contract directions of the compliance specifications and in strict plans prepared with public and furnished necessary to him in the construction of the improvements use, public he liable for dam- cannot be held ages to the real of the conclude that owner. We point is well taken. Respondents rely general on the rule as stated in 20 A.L.R. p. who, 109: “A carrying servant em- out terms of his ployment, who, by obeying master, the command his com- trespass, plead
mits a personally therefor, is and cannot Among defense the fact that his act was that of master.” support cases cited in proposition Nunnelly of this v. are Co., al, 397, Southern Iron 361, et 94 Tenn. 29 S.W. 28 L.R.A. 421 and Smith, Diamond et al 558, v. App. 27 Texas Civ. 66 against S.W. 141. Both of these cases private involved suits cor- porations agents. Respondents their further as au- cite thority upholding judgment against contractor, Glade, City Miller, 503, App. Dallas v. 7 Texas Civ. 27 S.W. 498; County, 227; v. App., Wilson Newton Texas Civ. 269 S.W. State, Schooler v. App., 664; King Texas Civ. 175 S.W. 2d v. Schaff, App., 1039; Texas Baker, 204 Civ. Black 130 S.W. v. cases, Texas think, 111 2d S.W. 706. These we do not bear
385 judgment rendered directly point. In none is municipality nor agent governmental agency of the an of the except Black agent case of liability discussed of the mayor City acted of the Baker was held that v. where it or direction authority and not at the order without council. general Respondent rule of that under the contends City, negligence agent contractor, regardless as an respond held and that facts in this
must be general exception case do not rule. constitute support contrary We think the decided hold cases position petitioner. generally decisions a contract hold that under municipality for the construction works the contractor of negligence performance parties only liable to third performed of the work and not for the result work ac cording Daly Company, the contract. v. Earl W. Baker & 1114; Company Okla. 271 Pac. 2d Tidewater Construction Manley al., 500; Municipal et Va. 194 75 2d Marin S.E. Paving Co., App. Water District v. Peninsula 2d California 404; Yearsley 94 Pac. 2d v. W. A. Ross Const. Sup. 554; U.S. Ct. 84 L. Ed. Construc Panhandle Shireman, 461; Swilling tion Co. App., Knight, Waldo, Blair v. There would seem *4 imposing liability more valid reason on the contractor damages respondents’ adjoining done to than to an land owner. But point holding more to the is the in v. Foster Wood & Creighton Co., 191 Tenn. 2d 1. of Ten- The State agreed Chattanooga nessee City with the of aon street-widen- ing project, City being obligated the to secure easements way.
the of The state then contracted with the defendant perform to widening job completed work. accord- The was ing to the compliance contract and in of with the instructions engineer. easement, City the state acquire The had to failed by purchase proceedings. either or condemnation The same Nunnelly supra, court that opinion, (1895) wrote the held that contractor, being negligence guilty having not fol- and doing work, lowed the superior directions of his in was clearly liable, improvement not City but authorized the and, having accepted, would own- be answerable to the improvement. by
er for the which were occasioned matter, practical in the construc- reasoned that as a court ought relieved improvements, to public tion contractor be authorities, public checking given every from order him specifications verify plans required for if he were to engineering permitted force and not to follow orders state, improvements of the urably the cost would immeas- The court work
increased. observed that contractor’s engineering job laying project is not the out the con- but doing long sists of what he is instructed he com- to do so as plies manner, instructions in workmanlike negligently, he is not liable. Salvage Herrick,
In Newton Auto 203 Iowa 680, 681, liability. the court N.W. absolves the contractor of all In that also contracted defendant con- with the to struct a sewer line. The contractor sued for property lay path line, landowner whose in the sewer of the acquired from whom the had not an easement. in While entry by case there was no actual the contractor on the owner’s the court held: duty
“It city provide right way, of the to bidding assuming defendant justified for the work was duty city regard of the in that It would be observed. would liberty municipalities destructive make public improvements, economy construction, and of if con- required making tractors anticipate their bids fail- part ure on the municipality perform such duties and provide against contingencies developed such in this have case.
“* * *
duty
provide
It was the
plans,
defendant did not
responsibility
assume
for defects or
insufficiency
plans.
in the
The defendant would be
ordi-
narily only
negligence
for his
performance
work
for,
contracted
and not
performed
for the result of work
ac-
cording to the contract.”
Queen
cf.
Muskatell v.
Construction
3 Wash. 2d
We no nor cited, holding has one been contractor liable under such circumstances.
Respondents insist that City both the tres- Glade were causing passers entering wrongfully property, their allega damage complained Conceding of this of. the correctness tion, until this would not render the liable because contractor they appropriated respondent of taken and Essentially occupied position adjoining landowner. of an liability contractor is there is no difference so far as the of the trespass concerned. A in Russell was committed v. General Con refused, struction writ 59 S.W. Queen Co.; Auto City also in Muskatell v. Newton Construction Salvage supra. Herrick; others, To Blair v. Waldo trespass “entry upon constitute person, land need not another’s may causing permitting thing be made boundary premises.” C.J.S., Trespass, cross the Sec. of the Suppose a contractor constructed a ac- dam cording plans specifications and City lake thus formed acquired. overflowed onto that A had not trespass is committed work contractor and City is injury ap- liable to the owner for the or for the land propriated, but we think it successfully could not be contended damages. that the contractor perceive liable in ma- We terial hypothetical variance between facts stated and those of the instant case. To respondents hold for the under the facts here would com- pel the portion contractor obtaining to bear a cost of right way. damage The sole element of claimed in this suit against the contractor is the destruction of the trees three right
which were situated within the way way staked out necessarily had to be removed. This had completely appropriated by under eminent do- process main prior filing of this suit. Respondents rely also on the decision in the of Fort Dietert, Worth v. 299, 301, writ refused, point but on liability contractor court only held injunction against prosecution ais remedy harsh appellees and that “whether or not have valid claim for in the district court growing out July 24th, is a matter de- termination hearing of the district court after a on the merits with all the facts contest, disclosed. If Glade loses he has the appeal.” pass express The court did not on or any opinion as to the matter respondents, of Glade’s passing we are now appeal. *6 trial of the that an affirmance contends further Petitioner respondents judgment the in this would allow
court’s case filing this prior the of recovery for the reason double the re- hearing special the commissioners in the before damage the by removal of pointed spondents out the caused damages arising construction out of the trees and other damages by awarded and the were installation sewer respond- commissioners, on submitted. The based the evidence pending appeal in they is still ents took answer appeal county de novo without court and that will be tried the respect commis- adduced or reference to evidence before sioners. City Appeals of of Fort v. Diet-
The Court Civil Worth ert, supra, denying City’s application injunction for an prosecution to restrain the held that of this suit there damages separate action, two resulting causes and that of separate July from the on 24th and inde- pendent by City filed on condemnation suit November appeals upon for 30th. Three courts of cases civil were relied holding. City Fike, that Laundry of Ideal San Antonio v. Dallas, Gregory v. Co.,
Co. 2d 801 and I. R. Gulf & 617. In (no history) first case writ held that it was landowner damages destroyed prior to could not recover for a sidewalk proceedings. the institution of the condemnation The statement long pro- of facts does not reveal how the condemnation before ceedings up had torn nor under what cir- sidewalk cumstances, or for entry by what reason. In our case the pursuance plan improvement already adopted process and in In the construction. second case the damages arising years landowner’s cross action for two before growing proceedings the condemnation out aof breach of properly contract was held irrelevant and dismissed. In correctly last inquiry the court excluded from in condem- proceedings sought nation as to the value to be damages resulting railway condemned from the failure of the company guards way. to build cattle and fence its This ruling was correct because Art. Rev. Stat. limited sought inquiry to “the value con- to be demned, and as to the which will be sustained * * owner condemnation, thereof reason of such *.” See Vernon’s Ann. Civ. St. Art. Subd. Regardless anything said in of Fort Diet- Worth v.
ert, supra, strictly pre- law should not so construed as to court, county recovery respondents elude case sioners, from commis- pending appeal the award now from including entitled, they may of all to which removal caused diminishment of the value *7 the trees. 3269, by Art. provisions
This conclusion
fortified
the
Dieterts
Ann.
this statute
Vernon’s
Civ. Statutes. Under
.if
City
condemn in
had filed
before
undertook to
their suit
county
City
could have intervened and exercised
court
right of eminent
court. Brazos River
domain in the district
Con-
307,
Costello,
servation & Reclamation District v.
135 Texas
577,
tractor constituted a cause City, of action yet, under the in such circumstances this, a require separate to the trial of two causes of action consumption expense, with double of time and when damage actually was occasioned on account of the improvement project pursuance thereto, and in would a hard ship parties, on all unnecessary. as well as useless and The destruction of the trees is an element of value to be considered determining compensation owed to land owner for acquisition property. of the easement across his The only party right is the way taken and used in the public improvement. construction of a judgments
The Ap- the trial court and the Court of Civil peals are prejudice reversed and the cause is dismissed without respondents to present their claim for pending. condemnation suit now
Opinion 24, delivered October Mr. Justice joined by Griffin Justices Smith and McCall dissenting. respectfully
I opinion majority dissent from the in this case. right-of- having Fort Worth not condemned the original entry way time of the for the sewer at the line trespasser the Dietert July 24, on Glade was destroyed land and the time he went at any governmental authority, nor contractor
three trees. No enter governmental working authority has for such requisites belonging private until the owner complied with. the condemnation statutes have been cited therein. 167, and cases Jur. Secs. “ having who, there- trespasser title person is a ‘A on land’ A entry thereon. to, owner, makes without consent of true pro- instituting which, condemnation corporation ceedings, instead of land, tres- law a simply proceeds appropriate is in elementary “The rule is passer.” 41-A Jur. Sec. 3. procures trespass, to commit another that whoever commits person it, that the who per- is liable therefor. It fundamental law wrong trespass guilty is the commits a or is tortious having of action primarily party son A cause liable therefor. *8 further, may inquire proceed once for such need no but at *” * * 12; Id., p. 473, Re- person offending. so Sec. 163; p. Id., Torts, 1, p. statement of the Law of Vol. Sec. trespass under on land Sec. 164. In order to be liable for a necessary that only the rule in (Idem.) stated it is Section part in intentionally upon any the land the actor shall of definitely was question. These authorities that Glade establish trespasser entering property, in Dietert and is liable onto the as such. question
The next to be determined is whether or not dam- ages may trespass for this recovered in the condemnation brought by some after the commission of months “* * * trespass. however, proceedings, In condemnation damages measure rigidly of fixed the statute of eminent * * * special applicable domain or other to the case. statute wrong- guilty the rule is that even if the condemnor has been doing prior award, damages to the final are not recoverable for tort proceedings; condemnation must him- owner damages sue Accordingly, special self therefor. tort in not are proceedings appropriation recoverable in condemnation proceedings or before had been commenced they pending.” (Emphasis while added.) were Tex. 16 Jur. 508-509, Falls, Perry Sec. R. & F. R. history Wichita W. 276, (1-3), App., writ S.W. no * * * court; appealed county case condemnation from the Fort Ry. Gilmore, 1928, App., & D. P. Worth S. Co. v. Texas Civ. damages 543, (3, 4), holding negligent S.W. construc- proceeding, not in tion recoverable a condemnation and where- County cited; Traction in numerous authorities are Jefferson 448, (2), a Wilhelm, 1917, sought negligence damages were in construction where North Shore proceeding; Houston condemnation Stakes v. 1110, 1111, (1, 2), Ry. Co., 1930, App., Texas Civ. charged jury history, the trial court had writ wherein tending showing they not evidence could consider trespasser Company on the to show that the Railroad was plaintiff Complaint made at the time it thereon. entered charge, charge, Appeals upheld and the Court of Civil “* * * error, saying: charges correct state- These law, presented by ments of this state. The these law charges, many has been so announced the courts times nothing this state that a further discussion could add to what heretofore,” clearly citing Supreme has said so numerous Appeals Court and Court cases. Civil Fike, 1919,
In the case of San Antonio 639, 641, destroyed by the owner of a sidewalk process sought widening lawful re- a street covery in proceeding a later condemnation the value of Recovery ground sidewalk. was denied him on the the value proper sidewalk not a item of the con- demnation suit. The Court said: * “* * general The rule is stated to be that accru-
ing prior proceedings by the institution of condemnation reason of an unlawful trespass. recovered should be * * * Domain, Lewis on Eminent application Sec. rule is well Gregory Railway *9 illustrated case of App., 598, 21 Texas Civ. 54 rail- in which the way company upon condemning it, entered the land without and fences, failed to damages, construct etc. It was held failure, resulting caused such whether from inroads of stock value, or loss of rental could not be recovered condemna- tion suit company. afterwards instituted “We conclude that destruction of sidewalk was independent much an negligent tort as improper would be construction, recovery and that thereof can be had in suit.” County Howsley, 1930, See also Throckmorton Civ. Texas
App., McPhail, 1939, S.W. 2d Trinity 803, (6, 7) ; Laundry Civ. 131 S.W. 2d Ideal Dallas, 1933, 801, (5), w.o.j., Texas dism. condemna- the nature of wherein is found fine discussion therein; City Fort proceedings tion and recoverable Dietert, App., 271 S.W. 1954, Texas
Worth v. ref. wr. can- jursidictions the defendant is that
“In some rule power of has the trespasser he as a where not held is to con- However, in this state the rule eminent domain. instituting defendant, con- trary. Here, instead where appropriate proceedings, proceeds simply demnation *” * * (Emphasis land, trespasser. plaintiff’s he is in law Id., p. Sec. added). also 16 Texas Jur. Sec. 167. See good the difference 166 for a discussion of between liability for its the condemnor constitutional negligence. tort or Bayou, Supreme Buffalo
The Texas in the case of Court 588, expressly re- (1863), B. & C.R.R. Co. v. Ferris power having of emi- jected the doctrine that a defendant trespasser nent domain not as a for could be held liable taking complying property prior the condemna- tion possession taken company statutes. The entered and railroad had Ferris’, their plaintiff, constructed land and line ages said for dam- land. Ferris sued in the district court company trespass filed committed. The railroad alleged plea charter in abatement it its company Legislature issued to it it for the made lawful specific- plaintiff’s railway purposes, take and also ally relegated plaintiff provided for in to the action Section of its charter taken of the land value exceptions plea Plaintiff’s to the in abatement thereto. sustained, judgment plaintiff a trial ren- assigned appealed court’s dered. Defendant error to the plea sustaining plaintiff’s exceptions in abatement. to the disposing pro- In case, court, discussing after charter, visions of the railroad’s and its to take having paid compensation, without first turns conten- being company tion authorized to take the proceedings, trespasser prior after lawful for a could taking compliance necessary without with the statutes. The Court said: *10 urged, however, that, although may may
“It be charter compensation appellee provision adequate not made for have to taken, property yet, provision, for the absence such take such to enter and company were still authorized they although road; they their required construct as might to they doing injunction, by so from have been restrained law, cannot acting conformity with be under and regarded consequently cannot be trespassers, and an action as alleged trespass them for the maintained charged. Although to sustained they doctrine seems be are this Rogers high authority, from it. by constrained to dissent we feel Ross, Ch. 344. Bradshaw, 7 Johns. Johns. Jerome prop- private impotent take The state erty as an individual to is consent, any purpose ade- for without the owner’s unless provision of the quate compensation this is made for it. Unless pri- complied with, any has interference with constitution been injury property, pretense, it not under what is vate matters owner, ‘by due done to the for which he is entitled to redress every gives a course of of action to law.’ constitution lands, goods, etc.; injury his and it one who has received an him, said that an land can taken from cannot be individual’s be (603) may, purpose it with- let be done whom or for it what except compensation injury, adequate has made out where doing. any proposition to him so Nor is it answer to this for say taking illegal, property his is because guarantied compensation it, has to him constitution legislature him, may secure this done it to bound ask, obligation, may a future act. But is the we him to make stronger legislature compensation, any upon a future than it authority that one whose his has been provision taken; and if it has failed to make a constitutional compensation, what can he that rights assurance have however, was, place It future one will do so? higher legislative grounds than the mere sense upon legislative justice equity, prohibition rights.”
power was bill of embodied Although prior adoption in 1876 was decided this case present constitution, provisions of our in the Fer- discussed present substantially ris are as in our consti- the same tution. corporation enters land without the con-
“Where acquiescence owner, sent are recoverable sought trespass. case, recovery may In such for the dam- ages accruing trespass, from the with interest down to the date or, appropriation trial, permanent prop- where of erty intended, appropriated the value of the property, depreciation remainder of plus the same of land. tract
394 recoverable, the property, “In addition to if the value of damages according injured may special any owner recover for damages trespass. may punitive sub- law recover He damages. general may ject regulating And such he law single damages trespasses recover a action. for successive petitions appropriator hand, On the other where for damages prior being condemnation the land suit damages owner, instituted are not recover- the tort able proceedings. in the condemnation to recover dam- In order ages situation, tort must institute for the in that the owner proceedings.” independent 533, 534, Sec. 16 Texas Jur. (Emphasis added). agree that
I take it determined will the value will be taking. 574, as time of of the 16 Texas Jur. Secs. 249 and 3265, 250; Damages,” Art. “Rule of Annotated Texas Vernon’s holding For additional authorities that the value Civil Statutes. of the taken at time of a lawful is to fixed taking Cave, 1891, 137, Ry. Texas see Co. v. 80 Texas Western 786, 787; 1891, Ry. Ruby, 15 San Antonio & A. P. S.W. 172, 1040; Ry. Co., Kirby 80 Texas S.W. App., Panhandle & G. App. 39 Texas Civ. Swilling Knight, 1947, S.W. history; Waldo, 1922, no writ Blair v.
986, 989. question
Next we come to the as or not to whether escape liability working can he is a because contractor City. say trespasser, regardless he I is liable as who might employer upon unlawfully have been at the time he entered only condemning authority
Dietert’s land. It is where the possession lawfully property, is at the time of authority entry, has lawful to make the contractor act- negligence ing liability. without absolved from Petitioner Glade relies Blair v. Waldo history, authority no writ pro- as for the position contractor not liable for when he is acting authority city, guilty under of a negligence and not public improvement. in the construction of the In that case the court first discusses the city to the landowner destroyed by for the trees constructing contractor a law- (a improvement ful line city street), sewer down a and holds plaintiff that city. would have been liable had the sued the up the court takes the liability Next of the contractor plaintiff. holding In Waldo to says: Waldo not liable the court Waldo, against appellee, shown, is, has “This by the given Consti- expressly compensation alone to recover proper lawful reason suffered tution terms with the sewer in accordance of a construction plan city, by him a contract between case, such designated In and fixed. route sewer *12 by Waldo, wrong but tort, any done or suit is one paid to granted by the be compensation Constitution one for is, damage; causing that by the act by the those benefited generally. citizens, public aggregate city, the by of the the App.), Forney 223 S.W. (Texas Com. Brewster v. of against ap- any action is shown cause of do not think We pellee, Waldo. Houston, granted it
“By city has been of charter to damage, destroy property of authority take, or clothed Therefore, public use. corporate limits for a citizen within its if, authority, private property is dam- in the such exercise of sewer, public aged a proper in and of lawful construction damaged; unlawfully neverthe- it cannot less, been be said have injured compen- cases, party
in such
is entitled to
city
sation,
granted
Constitution,
expressly
by
from the
agents
benefits,
from
who
which receives the
act
legal
but not
officers
practical
only
city.
and
under the direction of the
To
property,
extent
purposes,
plaintiff’s
intents and
ag-
by
city,
$300, was
of
gregate
taken
for the benefit of the
citizens,
appellee,
by
of
and not
Brewster
Waldo.
Forney, supra;
Johnson,
Law,
of
v.
Sinnickson
N.J.
129,
added).
(Emphasis
agencies performing its per- functions. Are these held sonally performed very act liable when specifically di- sovereign power acting legis- rected authorized under True, here had not lative sanction? there been a statutory con- easement, paid, demnation the claimed nor appears appellant sufficiently it the roadbed legal condemned, worked had had a legally and that it state, thereon of its under the that all sanction lawfully acts were authorized state custody and be a control it said then to state. Can trespasser, so as to it the common law? We make under supported by think In authori- not. are a host of view we ties, though op- plausibly reason to the there are a few which Kentucky, posite these, conclusion. For all from collation Queen, see Ky. Ashland v. 71 S.W. (Emphasis added). 653.” Swilling Knight, 1947,
Petitioner also relies on history. ruling involving no writ That was plea city privilege. The facts of that case are sys- lawfully constructing legally a water and sewer tem. Swilling employed Defendant was the contractor lay *13 to the water the and sewer in street in front of lines plaintiff Knight’s garage. alleged resulting The digging deep to be virtue the contractor defendant of a installing therein, ditch and the lines the street in front of garage plaintiff’s ingress egress so as to cut off the and said right garage, authority. holding petition without or In the contractor, stated no cause of action the said: the court “* * * In Russell et ux v. General Construction App., 1109, 1110, refused, writ it said: “ ‘Hence, city being the legal right making within its the public improvement, plaintiff company and the construction having properly work, according done plans spe- the cifications, damages against there liability would be the though company, the street was elevated above defendants’ thereon, contrary and cast water to the natural flow of the same. The work company of the construction was not its act, personal city Merkel, but that which, de- under finite conditions was damages, any, flowing if from complained the act of.’ “See also Shireman, Panhandle Const. Co. v. Texas Civ. App., 461; City 80 S.W. 2d McKay, Huntsville v. Waldo, Blair v. 245 S.W. (Emphasis added). 986.” I three of submit that those cases are based authority proposition constructing improvements improved, being upon legal and lawful a had authority legality lawfulness it and was contractor. protected the Foster & Wood case of majority relies The authority 1, 3, Creighton Co., 191 Tennessee trespass. liability in our case of
to relieve contractor not a that was place first In the case does not so hold. That negligence as the trespass, one for a tort nor for * * “* negligence, in- only claim said, The Tennessee Court concerned, the contractor is that as the contractor sofar examining plans find whether negligent specifically in not sloped back. towas plans that the or not the showed holding the con- lower courts of the two This is basis negligent.” tractor was engaged lawfully place, In the second legal street, lawful and
improvement
roadway
and had
of a
dam-
authority
improvement
in the street.
to make such
negligently sloped the
ages claimed were because the contractor
building
retain-
upon plaintiff’s property
rather
than
bank
pat-
ing
holding
case follows
wall. The
in this Tennessee
Waldo, supra; Panhandle Construction Co.
tern of Blair v.
words,
Swilling Knight, supra.
Shireman, supra;
In
other
making
being
legal
City,
its
it was held that the
within
having
company
improvements,
done
and the construction
specifications,
according
plans
properly
the work
company.
liability
hold-
Such
there was no
on
construction
holding
ing
cry
majority
far
from the
is a
illegal
land,
having
the con-
made
contractor
city some time
from
is exonerated
because
tractor
*14
statutory
proceedings.
doctrine
enters
condemnation
Such
later
ninety-
Supreme
repudiated by the
Court of Texas some
was
years ago,
quotation
as I have shown
from Buffalo
three
Ferris, 1863,
our
Bayou,
R.R.
terts’ is liable to them suffered. Appeals I would affirm the Court Civil in this cause. Opinion delivered October 1956.
Rehearing overruled December 1956. Corporation
Global H. J. Vincent No. Decided November 1956. A-5910. Rehearing overruled December (295 640) Series