8 S.W.2d 306
Tex. App.
1928

*1 REPORTER, 2d SOUTH WESTERN SERIES Appeal <&wkey;l050(2) 6. —Admission canal, inaccuracy evidence of v. WARD COUNTY WA immaterial, while for reversal held not water district TER IMPROVEMENT DIST. NO. 3. against failing 2103.) in action for (No. sufficient water. Appeals of El Court of Civil Texas. Paso. against In landowner’s action water district March 1928. damages failing for for sufficient to furnish inaccuracy ter, gauge admission of evidence as May 17, On the Merits 1928. imma- in canal of water while terial, for reversal. held <&wkey;25lContigu- 1. Waters and water courses — <&wkey;546 testify- 7. Evidence —-Whether ous lands admitted gauges ing inaccuracy water water district become rights held within trial (Rev. and liabilities as other discretion. § against water district In landowner’s action 7649, providing Under S't. art. Rev. damages to furnish sufficient for water, for failure lands should not be admitted testifying to inac- whether witness of ad- to water district unless such lands proper qualifications had the prejudice to mitted without trial court’s held within be first fur- contained therein water, ad- nished @=3971(2) Appellate Appeal 8. — mitted come to creation of district be- on witness’ courts trial court’s decision review and have same district give opinion only qualification cases of therein, all lands as other lands since liabilities are clear abuse. of district. liable for indebtedness Appellate trial courts upon qualification deciding court’s action @=>1058(1) Appeal 2. —Exclusion to matters a witness testimony that cotton failed for lack controversy only abuse. in cases harmless, water, in view of ad- held testimony. @=>1050(1) Permitting Appeal mission of similar and error 9. — government geolo.gical survey records damages against In action landowner’s for hearsay impeached by testi- to water to be improvement water district for to fur- failure mony ac- reversible error in landowner’s held water, error, nish sufficient against district. water testimony that cotton was failure for lack against In landowner’s action water district water, of stantially held where evidence of sub- to furnish for question terial, permitting prepared by failure sufficient nature was the same otherwise ad- water was ma- of amount mitted. to discredit district testimony @=>129(1) Excluding Evidence 3. re- — land, on other on lating amount of cotton raised amount of water introduction damages issue of from failure of landowner’s what records held reversible supply, proper. water held damages against In landowner’s action for Appeal Court, from District Reeves Coun- for failure to fur- Judge. ty ; Klapproth, resulting Chas. nish loss of sufficient testimony crop, of another landowner Dongenecker against Suit M. A. as to amount of cotton raised on his land held County Improvement Ward Water District proper. Judgment defendant, No. 3. and the Appeal @=>1050(2) and error action for appeals brings —In and de- water, admitting failure sufficient case on cer- fendant moves affirmed organized evidence that farmers over to take overruled, judgment tificate. Motion while held not in- versed, and cause remanded. jurious. Loose, Houston, E. Wm. Ran- against In landowner’s action B.en water district damages dals, failing Pecos, appellant. for for for furnish sufficient wa- ter, admission of Starley evidence that farmers were Russell, E. J. G. both of H. organized to take over district and bonds were appellee. Pecos, for while . injurious. held not On Motion to Affirm on Certificate. @=>171 5. Evidence —Admission PELPHRBY; C. J. This cause was tried to written rules held, court of Reeves violation of best evidence rule. appellee, resulted in a in favor of landowner’s water district day May, Ap on the 20th damages failing sufficient wa- pellant filed a motion for a new ter, admission of relative to rules of 8, 1927, thereupon was overruled on June to land- ap notice and filed her owners which were in held not violation peal July bond to this court on 1927. On rule, of best evidence since rules formed no September 21, 1927, appellant filed in the trial foundation for cause of action or but. application court her were collateral for a writ of error and @=For topic Digests Key-Numbered other eases see same in all KEY-NUMBER and Indexes *2 (Tex.) WATER IMP. DIST. NO. 3 LONGENECKER v. 307 S.W.CM) 8 nothing, in month. is of the same in this court now be- a bond tne 27th cause cost on transcript on the fore this was court for review on of filed a writ Appellee day September, has 27th of Opinion. affirmed on filed a to have the case motion transcript certificate on the was not law. that the Plaintiff in error has 20 of by required within the time filed error, the first admis- to either the 1839, Statutes Article Revised Civil evidence, sion or of while the transcript 1925, maining qualifications relaté to attached days perfection filed within 90 of exceptions to bills of filed in er- error, appeal or service of the writ of ror and the court’s its own refusal to file was here discloses that same record plaintiff when bill refused consent in day eighty-ninth filed in this on court qualifications attached to bills. appeal perfected. after of The motion was Plaintiff in error offered in evidence tes- appellee on is therefore affirm certificate timony the of the district, upon petition defendant Appellant, motion, her has in answer to district, owners lands prayed appeal without her be dismissed to 1,000 acres were admitted to the land prejudice prosecute ap- her by directors, the board of plication error, or, in alter- writ approximately 200 acres of such land was appeal mative, that and writ error be irrigated in that one acres tract consolidated. never, prior to its being The ease before both the court on trict, received from the owner of the S. Y. appeal ings by error, proceed- two writ and. Biggs appropriation right; a water hereby consolidated. proximately were irri- 'tract gated in and that all of said land On the Merits. irrigated which was in 1923and was so subsequently admitted, received from de- originally this suit filed equal portion fendant district an of the water county, praying the district court Ward available to the defendant run mandatory injunction requir- for ing writ a through Upon objection its canal. to in defendant to furnish water evidence, excluded the and his action in so plaintiff certaih Ward in error situated doing assign- is made the basis for first ment of error. court, by 3. The writ was refused the trial Plaintiff in error’s contention that under "is order, taken and the 7, was from such article Revised Statutes was granted writ was this court June duty the an furnish her error to Upon agreement parties of both cause was delivering of water before transferred, to of Reeves the district court any water to the lands admitted to the dis- May county. 4, 1927, plaintiff in error On creation, trict de- and that claiming petition, filed her amended third having pleaded fendant exemplary damages, alleged both actual and supply inadequate district’s water to have a result been sustained her as unprecedented drought, because of the failure of district to furnish to her having sup: proportionante part introduced much lands her of its available port pleading, such the evidence should general Defendant in error filed not have been excluded. demur- rer, general error, denial, special exceptions, as- spe- in answer to said Defendant in cially denied, error, signment allegations pe- asserts that the certain plaintiff error, specially irrelevant tition of pleaded was and excluded year year reasons: of un- (1) extraordinary drought throughout usual Because lands admitted proportion this flowing the avail- section are entitled to able that the state and during irriga- their admission into Pecos after river (2) admission; year before small, of their status the limitation of lands shall not be tion season and that that additional statute the amount of water for the use of admitted “can unless totally defendant irrigate without if and that the lands plaintiff thereon” other lands in error’s lands failed to receive govern of di- the board and does same is sufficient shortage caused admitting by any rectors the board act or de- admitting lands the fault on the or its officers thereby agents. has water determined lands, sufficiency such spe- favor of The cause was submitted cannot board issues, and, such decision cial the issues been an- attacked; (3) collaterally adversely judg- swered having piead testified tiff ment was rendered REPORTER, 2d SERIES 8 SOUTH WESTERN be admitted “without insufficient water primary with a lack of water.” in within therein following testimony ject tion or relative to the harvesting A. H. Perrin: county furnished water and complain we do not think the their admission such there admitted. admitted to s,uch sion of the one time in tified relative to the ed, and the said 37 the produce therein darily entitled to the benefits. This result plaintiff edness and cluded said cotton his expenses been being subject dwarfed on on the land in “Answer to direct “Question, “My recollection is The article of the The [2] [1] The above answer of the We find that maintenance, acres of land any proper irrigation experience and all therefore irrelevant and they action. created once Plaintiff your knowledge witness Starks also testified that Longneeker evidence offered their be first to be first bonded secondary our of the lands and all the facts and circumstances previously committed no error in sufficient water in error and error is water,” crop expenses said lands were other facts within account direct plead' opinion and hold district unless such planting, cultivating, irrigating, marketing the said witness further was a failure if it was. indebtedness operation, partial irrigation of the district error offered in evidence the furnished interrogatory while it liabilities as tract which was said land.” a farmer right, otherwise would be to interrogatory also failure of of the district made. Legislature from the how when lands shall become with reference as to statute referred upon entirely lands should not no water. prove as follows: liable Legislature as have before of said cotton or other it for all contains with an witness was of the admitted, your was the Ward insufficient for No. 28: State deposition and have No. 28: For objection intended. other assigned cotton unless of the said as well as they knowledge necessary any adequate expenses farming, order to indebt cannot rights, provi- secon to taxa- upon land ness they stat- crop sub- was Smith why and, tes- ex- be it. being effect, K. 154 S. W. but was hart Real Estate cotton raised on his them court did not 158 S. W. Ry. parol foundation mission of the witness and that the evidence of the rules was not the evidence that bonds were rebuilding 219 S. W. cluding evidence was take over action of the court in effect. din Monroe for of bonds asked of error ment Consol. fore inadmissible. ingly we cannot extent as to Tex. Civ. are Porter (Tex. Error, The The [4] [5] Plaintiff in error [3] [7] [6] The Judge & T. being prejudicial heard. 560; Aurelius relative to the accordingly overruled. eighth contends Co. Wilson We ' substantially Plaintiff therefor, issued for Civ. is otherwise admitted. witness Goodrich question fifth, sixth and seventh the above' answer Elec. in error was collateral v. Ry. Monroe App. 579, the district and are also of the App.) witness evidence admitted agree for the cause of action or 221; M., gave any, demand gauge in Co. in our err complains in error in her tenth system. ninth and also K. other rebuilding no If v. Hedric to what the rule Houston Belt v. Stewart organizing Ry. Agency .the Briggs thereto, rules & T. best land. refused; Kelly (Tex. to her á reversal opinion injured the canal rules overruling also Co. of the witness 152 S. W. assigns harmless 166 W. While evidence and S. as Ry. was the no as we cannot see as to taking Civ. then W. 860. v. Le was error 728; V. opinion (Tex. complains (Tex. way S. were in as (Tex. immaterial, yet as to the the farmers Co. v. Johnson Biggs Peevehouse system. we think the App.) we to consequently of defendant the issuance evidence, assignments & Terminal any way by landowners, Larrabee bonds formed Master, are accord Civ. to such rule Civ. 1196; M., Civ. any v. Dallas think as to the question relative assign 165 S. in ex "Judge excep there cause. Maul- bonds App.) App.) could *3 App.) from inac Dal wit ad its is v. WATER IMP. DIST. NO. v. 8S.W.(2d) they cases, in addition to as evidence the witness D. they why me a written statement testify inaccuracy of the as to the themselves, show, recognized; these operated maintained unpublished, in some show the Barstow below places are estimated.” She dam’ Barstow canal. testimony on the to the admission of He further testified: not shown said witness was inac- were so me that “He told testify the facts. me to them to he wouldn’t curate that great measure within the dis [8] It is in a in- use as evidence sufficient upon the cretion of qualification trial court to decide publication.” of witness to controversy (M., sought K. & T. as to matters R. the exclusion Hedric evidence on aforesaid *4 Philadelphia hearsay. Fire Ass’n Civ. [Tex. & D. v. Powell App.] pleaded Fort Worth and intro error [9] Defendant sup Hapgood App.] C. R. tending [Tex. show that duced evidence ply refused); appellate courts have available the court’s action in such lands within all the only (Early- matters in eases shortage of. abuse Foster Co. v. Gottlieb responsible its failure to plaintiff in water. As to whether or not the contention, plaintiff had refute proper qualifications was a matter for the mentioned. introduced above court discretion, to decide within jury of his exercise aswas issue submitted The first we, under the facts of the officers refused or its whether the district case, find no abuse of plaintiiff negligently failed to introduced its available photostat copies computation pre- sheets pared by clearly complained of was containing unpublished daily hearsay, and, record of if its introduction affected gauge heights daily monthly would constitute material issue charge gauging for the stations on Bar- reversible error. stow canal and in the Pecos river Bar- reading above appears en- to us from It stow. These records were not tire record in error. question, water was a material Defendant in error in turn records, introduced been introduced the witnesses showing amount of what Starley: Boxley testified: subject available, not ter introduction, government discredited “I mean that the is incor- rect as it is taken.' I third reports discussed it with the my officialswho readings; come out to in the absence they ’said it is incorrect.” tiff in error. Defendant in its brief contends Starley testified: prop that the records were worthless and my knowing “As how were consid- evidence; yet er no ob we find that it made government: ered I wrote to the board jection They introduction. September 12, 19216, report upon for a this properly jury, and, being so, before the matter, got reply from them. That is weight might reply. whatever entitled wish1 receiving After letter I had them, investigate occasion matter; attach to further and the court erred went to the office of the state board of purely the introduction of hear engineers Geological Survey and United States impeach them. charge of Mr. Ellsworth in Austin and questions We feel that the other raised will plied worth timated. where office, and Mr. Ells- probably arise in another and there- merely advised me the records were es- unnecessary fore if is to discuss them. and were not taken under conditions the trial court is reversed accurate, could be and couldn’t be published, certify and the cause remanded. to them