*1 206 SOUTHWESTERN REPORTER 560 Appeal Court, from District Harris-Coun- ty ; Masterson, Judge. al. BANKERS' TRUST CO. Wm. McHENRY et v. 7438.) (No. et Receivership al. proceeding Bankers’ Trust Company, trustee, against the Mission Canal Appeals (Court Galveston. Texas. Civil Rehearing, .Company, McHenry in which S. A. On Motion for others June 20. 1918. 24, 1918.) Oct. intervened. Demurrer to interveners’ sec- sustained, ond — and from <&wkey;843-(2) Moot Appeal 1. Error — Receivership — Irrigation — interveners their re- Question - Rights. pleadings they appeal. Water fusal to amend Af- court, having appointed a receiver Where firmed. irrigation company, rates determined water for to rights paid by landowners, the water Vinson, Houston, Townes & Geo. P. company was owners under contracts Brown, Mission, Bliss, and Don A. of San question irrigation moot a president,, Antonio, appellants. for trustee, receiver, and the holder certificates, appeal Andrews, Rogue owners receiver’s from Streetman,. Burns & intervention, on-plea rendered Bailey, appellee Houston, W. S. interposed alleging after sale Bankers’ Trust Co. irrigation plant under court’s order. John, <&wkey;257 T. (1) Dawhon A. J. and Robt. both 2. Waters Water Courses —Irrigation—Water Houston, appellee oe Southern Co. Rates —Power Court. Glasscock, McAllen, pro. per. D. W. landowners receiver- Where intervened Louis, appellees Houston, B. P. Unit- ship proceedings against irrigation company Irrigation plant Conway. ed J. after sale alleged and for- Co. John under order of rights water under contract owner, pass where interven- mer question the court will not LANE, deem an J. We un- purchaser, derstanding opinion follow make plead application did not an ers to board of engineers following water fix water rates. statement: <&wkey;133Irrigation 3. Receivers during prior year Some time — —Rights Property. oe Court —Sale oe Conway purchased one and owned Court, having appointed irriga- large body county situated in the plant, right, upon motion, has a own dispose Hidalgo, Tex., bordering to sell and of all assets on the Rio Grande administering which it had taken and was river, establishing purpose an ir- through its receiver. rigation- plant thereon, selling and of out <&wkey;99(l) Courts oe the 4. Case. —Haw n purchasers the land to small tracts. After Where landowners intervened receiver- proceedings against- purchase him, Conway ship alleging, irrigation, company, many- did sell fixing rates, collusion of water small tracts or of said land to subdivisions adjudication that the coúrt’s fixed passing rates had been persons? among number whom were the precluded again collusion without making In herein: question sales of said oh the collusion Conway represented second interveneris inter- pur- small tracts posed of irrigation plant after sale of under ’orders they get chasers that coqrt. -respective tracts,- entitling with their >&wkey;92Management Prop- 5. Receivers — oe irrigated canal, erty tracts from- the '— Irrigation — Plant Powers oe partly constructed, constructed and to be Court. Court, having appointed receiver for would be furnished with water from plant, power fixing tion conditions conducted the rates and ha.s irrigation plant their lands should be price per going watering. $1 at the concern. stage Jury Jury proceedings At -some <&wkey;16(l)Right 6. one James Trial- — Receivership Proceedings Irrigation — Conway W. Hoit became associated with Fixing— Rates. enterprise. said association The exact time when this Intervening receivership pro landowners in ; began is not shown ceedings against. the record. plant have no - rights right by During year to have their enterprise determined 1909 the became jury trial, appointed receiv heavily indebted, and to relieve the same a having right rates, er to fix and landowners’ $170,000 procured loan in the sum of remedy appeal. Wellcome, F. one I-I. a resident of the Appeal &wkey;>101(2) 7. and Error —Decisions Minnesota; Conway state and and the said — Adjudication Reviewable Rights. oe Water 1-Ioit, Conway, and Emma L. the wife of receivership Where landowners intervened said John J. executed and delivered proceedings rights plant, alleging Wellcome, trustee, said P. H. owner, under contract with' and collu- fixing certain ing trust for deed of of secur- of rates sion court’s decree, holding that there was no collusion ahd certain be executed bonds rates, appealable. that court had to fix Conway and Hoit said indebted- wife (cid:127) ness, Rehearing. which bonds were to bear interest from Motion for On- cent, per annum, — Pleading — date at rate &wkey;>2I6(l) 8. Demurrer coupons attached, with interest in which Considered. Matters passing upon general In demurrer to a said deed of trust the said and wife pleading, only must look to and consider conveyed to 1-Ioit the said trustee all such matters fact as are in such right, title, and interest in and to all pleading. Digests Key-Numbered topic Indexes cases or other see same in all toff KEY-NUMBER *2 BANKERS’ TRUST CO. McHENRY v. said, exceptions, $309,0100, part land, and of over which a with certain included of the of purchase right, title, price to all of and interest land it the owned the also all granted, day granted sum rights all due and to to Wellcome. On the 18th of ditches, trestleworks, March, flumes, 1910, Improve- buildings, later- said Mission Land every machinery als, Company conveyed engines, pumps, ment of to the Mission Canal upon Company, description corporation organized con- or in a kind used and char- through irrigation plant Conway then tered with the said the efforts of and his nection land, associates, irrigation system, said extended to- located and said gether stood, rights should as the same then with all the same and water con- during it, of such the existence tracts owned be extended for a recited considera- assigned deed; $331,422. purpose paying tion further of trust For the of action, including purchase price said all trustee choses for said deeds, notes, mortgages, for .contracts Mission Canal issued bonds conveyances, reserving $331,422, finally passed other liens’ and all sum of into grantors by said owned bills receivable the hands of and became the of the parts Company, appellees them the sales of and received of Bankers’ one trust contained Said of lands. deed herein. 15th-day material March, covenants not deemed 1911, number of a On the Mis- of Improvement trust in this case. Said conveyed involved issue sion Land 1, 1909. Conway on November deed was executed to J. J. the land owned it on Hoit, Conway $400,- to- the said for a Thereafter date recited consideration 000, Conway Pope, procured the same date execut- gether a char- W. E. with one Bankers’ Texas, incorporating ed and to the Trust Com- delivered ter state pany, trustee, a of trust certain deed Improve- Hand the Mission what is called securing lands for $300,- Company, capital stock ment amounting, certain sum bonds total up. fully paid claimed to be $480,000, had F. H. Well- thereafter capital practically all of Hoit said owned assign Com- Bankers’ Trust come to merely Pope having stock, a nominal said pany right, title, and interest of Well- having same, been made interest in and virtue come incorporating said those member of de- deed theretofore executed trust incorporators have the number Conway and others. him required livered to Texas. the state of the laws of corporation became Bankers’ Trust purposes Thus the which said charter, large formed, bonds of the amount of stated in its owner owning, operat- constructing, acquiring, and also became agricultural irrigation system com- all of the trustee irrigation of purposes) for its own deed pany aforementioned irrigation contiguous to its lands and the trust. August, Bank- navigation, milling, 16th canals and On the pe- trustee, its mining, stock-raising, supplying ers’ tition Harris trusteeship, Sixty-First district in the might persons water, as it deter- and, reciting its Tex., county, after mine, paid for remuneration to it. of the Canal the indebtedness foregoing The effect of the transactions was same, inability pay the its large portion that a owned alleged: due, past much of by Conway conveyed and associates was company is an Improvement Company, Land defendant Mission “That owner of and corporation, and is particularly all the notes had -that been ex- large canal in said operating a now Hidalgo of land ecuted and delivered to such owners for Tex.; 25,000 county, acres about parts purchase money adjacent canals various lie under company, said defendant laterals owners sold tracts them. entitling them hold contracts December, 1909, On 28th acreage lands; to water Improvement Company assign- Mission Hand 15,000 under cultivation acres are about by croppers, large farmers and ed all *3 and and is recovery establishing fore- the closing and must, discontinue and canal and the said close down aforesaid, and, further, operation its lien as sufficient lack of thereof the attorney’s fees, closed, the its reasonable and its reasonable funds; operation and be if said canal that trustee, discontinued, fees for its services as for with allowance for a short even expenses damage only its great and in this be- time, be disbursements loss and will half, together farmers, with such other different as above and and to landowners caused the relief, general may special, company stated, both as it be will and the but properties premises.” value, the greatly depreciate entitled in the lien and and greatly security be of the bonds above described By duly passed authority a resolution impaired. com- the board canal of directors of the alleges upon informed, infor- and “Plaintiff is Conway, pany, wit, president, W.C. to J. J. many affiant, that mation and belief of farmers, tenants, Frick, secretary treasurer, indebted and landowners Sam- and Albert are_ company for furnished and and pay to Melden, mons, Armstrong, M. F. T. M. and lands, supplied have failed to their and president, is- J. J. waived the refuse, refused, and do now fail and to suit, in said suance service of citation failed, and company therefor, and the defendant has fail, company. appearance to or secure the col- and does now enforce entered for said thereof; many persons that lection thus day, On the same company removing to said are now their from debted crops judge plaintiffs’ petition, trial entered from the said effects following order: community county, and, prompt unless had, is much of the indebtedness due action The Bankers’ The Mission “No. 56169. owing lost, and and the said will be to Trustee, vs. Canal necessary par- it is of all interest August 16th, prompt steps 1912. “In Chambers. ties concerned be taken to aceoxmts; that, enforce the collection these having duly foregoing petition fil- “The of the facts reason and conditions above set presented on to me in chambers this ed and date, forth, grave emergency exists, and immediate duly considered, it is that J. ordered requiring honorable court appointment of a receiver this Texas, be, Hidalgo county, Malone of L. properties to take the said into prop- hereby, appointed for the is as receiver possession operation and to continue the there- corporation, erties and estate of the defendant of, and to collect and enforce collection of prayed the the bond for in moneys the pany, rentals and com- due to said foregoing petition; upon entering into preserve thereof properties to the said sum of ten thousand dollars (10,- going concern; hold value intact 000.00), approved be to the clerk of this premises plain- taking that tiff, aforesaid, reason this court, by law, provided the oath of office as capacity in its as substitute trustee as the said receiver shall take into his interposition possession properties is entitled to the of this of the defendant ap- company, may situated, honorable pointed and to have a receiver wheresoever same be preserve same, subject to administer the said as and hold and to fur- subject stated, above orders and ther orders this court in that to such behalf. The may prem- said receiver is to due this court enter in the directions as authorized directed moneys, accounts, ises. collect and indebtedness owing appears company, defendant “Plaintiff further shows copy ask, demand, and, hereto, necessary, bring, to to enforce if of trust attached deed suits provided collection it is pany therein that thereof. the defendant com- “Further, bear, pay, discharge any will receiver is and all authorized and charges operate, expenses, costs, legally proper- operate, directed the consumers, continue to irrigation canal, ly full incurred administration of and to furnish water to carry trustee, proper and to
trust
all such
the business of the
company,
costs,
subject
expenses,
charges
special defendant
to the
shall be a
further charge
premises,
and direction of this court in
behalf.
appurtenances,
described,
pri-
inventory
“The
receiver shall
therein
file an
ority
pons
payment
possible.”
as soon
bonds and
interest cou-
thereby;
proper
secured
dis-
duly qualified
L.
J. Malone
charge
plain-
incumbent
duties
trustee,
thereafter,
September 12, 1912,
tiff as such
and for
institution of
proceedings,
these
it has been and is
inventory
receiver
filed an
as directed
plaintiff
employ attorneys,
for this
and it
report
court, and
condition
employed
legal
Andrews,
has
firm of
Ball &
properties placed in
the
receiver,
his
represent
hands as
and act for
Streetman
premises,
sonable
plaintiff
is
made
entitled
have a rea-
its
recommendations.
made,
allowance
such an amount as needs,
requested
instruct
may
proper,
pay-
to this court
seem
for the
management
proceed in
him how
attorneys
fees of
ment of the
behalf, and,
lowance
its said
in .this
operating
further,
to have a reasonable al-
recompense
to it in
plant.
for its serv-
trustee,
covering
as. such substitute
ices
its
1912,
October,
1st
On the
expenses and disbursements in this behalf.
an order wherein we find the follow-
“Wherefore, premises
considered, plaintiff
ing recital:
cited,
prays
according
law,
that defendant be
petition;
presenta-
operation
to answer
receiver
“In reference
appointed by
irrigated system
tion hereof a
of the defendant com-
this court of the
possession,
pany,
the amount and basis for the
to take said
to care
lect
into
preservó
same,
supplying
charges
for and
the receiver for
to made
and to col-
appearing
outstanding
therefrom,
owing
indebtedness
and
court that
said water
character,
mutual
defendant
said receiver be
defendant
the
in that
capital
largely
power
operate
held
stock is
clothed with
operation
continue the
lying
irrigation properties
under its
the lands
owners of
of the de-
BANKERS’
McHENRY
TRUST
v.
CO.
system,
for each one acre of not received
of stock
one share
of water due
amount
company by
respectively;
resolu-
year 1912,
supply
the receiver shall
adopted at their last
tion of its stockholders
deficiency,
any,
but such
18, 1911,
meeting
provided
on December
held
supplied during
year
shall
whereby,
1912 and
placed
operations
basis
and
in
sion
on a
posses-
substance,
thereafter;
the owners
fifth,
shall
the receiver
irrigation system,
lands
adjust and settle
with said landowners
should,
therefrom,
and
ginning
rate
be-
to use water
entitled
holders the number
lands of the
of acres of
1912,
January
pay
an annual
latter,
sion,. capable
gation system
particular
water,
charge
subdivi-
tract or
use
paid
actually
water be
taken
whether
irri-
watered from the
per
not,
$4.00
in the amount of
company as
of the defendant
annum, payable
thereof in
on the
advance
$2.00
constructed,
above
and on
January,
remaining
*4
1, 1912;
paid,
except
$2.00 on
shall
from
October
the
be
to
or before
flat rate
or water-
to entitle such landowners
acreage any portion
or
such
thereof used
irrigations
charge
users to four
without extra
occupied by the
of
main canals or laterals
therefor;
used
irrigations
and, if
than four
be
more
roads,
company,
by public
the defendant
or where the elevation is too
or
year,
during
the
that the landowners and
pay
per
high
acre
$1.00
water-users should
for each
for
or is
irrigation in
of the four allowed for such
excess
any
incapable
being watered
other reason
of
rate;
appearing-
flat
further
to the court
irrigation system
defend-
company
operated
that
the
has
since
the
company,
day
January, 1912,
authorized
charges ant
and the receiver is
make all
upon
for
books and collections
water
employ
engineer
an
assistance
to
basis;
company
oper-
had thus
may
necessary
proper
be
to obtain
period elapsed
1912, upon
ated for the
annual or
an
and,
purpose;
data and information for this
sixth,
yearly
charge,
for its water
basis
using
year therefor,
authorized,
dis-
the receiver
in his
calendar
that
is
at
appointment
the time of the
of the receiver
cretion,
to refuse
furnish water
to
to
year
period
herein' the annual
of one
had not
fail
land or holder or water-user who shall
elapsed;
system
charges
if such
basis
laterals,
land,
prepare
refuse to
changed
his
field
date,
be
should
great
difficult,
or discontinued at this
result,
keep
manner,
confusion
proper
would
and it would be
and to
in a
and ditches
impracticable,
if not
to determine the
proper condition,
economical
for the
same
and
proper
payable
exact or
amount
to the estate of
using
proper handling
of water
company, by
equita-
the defendant
or make
herein,
adjustment
the receiver
the satisfaction of
ble
with each individual landowner
part
period
or water-user for that
may
annual
engineer
direct
the receiver and
elapsed,
prior
appointment
used
water
Further,
premises.
is
the receiver
in the
herein;
appearing
of the receiver
it further
fur-
in his
to refuse
authorized
discretion
system charges
the court that
basis
placed
operation by
was
aforesaid,
and until
unless
nish water
land
stockholders as
landowners, water-users,
who were
located,
therein be
laterals
ditches
field
and holders of water
from
contracts
the defend- constructed,
manner
and maintained in
company,
greater
ant
and that the
number there-
engineer
satisfactory
or his
receiver
acquiesced
therein;
of have consented to and
appearing
handling
and it
proper
further
to the court that all for the
and economical
and users of water from
landowners
such water.
system
of the defendant
while
contained
other
There were
directions
operated by
herein,
pay
the receiver
should
necessary
mentioned
charge,
said order
uniform rate or
and receive like treat-
ment,
without favor or discrimination of
here.
character;
appearing
reasons,
these and other
January, 1913,
14th
On the
being
court as
in-
best
report
showing
terest of the estate of the defendant
allowing
system
and of
the extension
order
concerned that such
entered an
basis or
charges
should continue
effect without ma-
system
another
to cover
so as
canal
change during
year
terial
1912 until
the remainder of the
land,
body
basis
another
and fixed
period
thereby
the annual
covered
year
charge
1913.
completed.”
water
May, 1914,
A. Mc-
S.
26th
On the
By
directed,
this order the receiver was
.
herein,
others, appellants
Henry
25
first,
operate
to continue to
and furnish wa-
receivership,
in their
in said
tervened
system charges
ter under the basis or
men-
among
allege,
they
petition
original
things,
above,
complete
tioned
so
year
the annual
Conway
and his asso-
J.
that after J.
period
1912;
second,
to furnish
con-
of the land
became the owners
ciates
lying
capable
water to all land
under and
only
irrigation system,
tiguous
partially completed,
system,
watered from
the event
they
them
and each of
only
pos-
and
session of
owners or
when the
respective
purchased
their
tracts
comply
lands
shall first
high
Conway
associates at
from said
provisions
all the terms and
set out in said
they
representation
prices,
that
order;
third,
per
a flat
$4
that
rate of
acre
irrigat-
their lands
be entitled to have
every
capable
would
being irrigated
acre
per
watering. They
at
acre for each
$1
ed
allege
as then constructed be
portions
respec-
respective
that certain
their
the owners of the
tracts
paid
cultivation;
tracts were in a
as follows:
tive
state
January
appointment
1, 1912,
remaining
$2 as
of Malone as receiver
that
procured by
1, 1912,
canal
$2
October
that
practiced upon
should
furnished unless said
rate
the court
J.
flat
fraud
J. Con-
paid; fourth,
way
Company
the owner of
and the Bankers’ Trust
rate,
pay
improving
flat
has
said lands shall
at
206
REPORTER
SOUTHWESTERN
just
expense
Interveners;
fixing
equitable
basis an order
rates
charged against
by the
these
n fixed
be
said receiver
interveners
instructions
during
pendency
suit
of this
furnishing
oppressive
receiver for
water was
irrigating
the. use
of their
of water
unjust,
charged for
rates
irrigate.”
lands
these interveners desire to
unreasonable;
water were excessive
concluding
foregoing allegations
After
allege
bonds,
they
herein-
the issuance of
prayers,
interveners, McHenry
mentioned,
Mission Canal Com-
before
pany,
others, repeat
allegation
procure-
their
they
fact
became
appointment
ment of the
properties
a receiver
property
They
Trust
of the Bankers’
Canal
Mission
they
in the
stock
owned
denied that
fixing
the
and the Bankers’
rates
alleged by
corporation,
Receiver
canal
applying
as such
for orders
Malone when
They
practice of
the trial court.
fraud
They allege
has
the receiver
receiver.
years
during
irrigate
lands
refused to
times
at all
they
and 1914
rent
had lands
cultivation
set
except
and conditions
the terms
anticipation
get
given
him
instructions
forth
irrigation plant
appoint-
further,
and,
court;
that since
receiver, Conway, the Bankers’
ment of
watering,
but
$1
lands
for each
collud-
and the receiver
they applied for
when
fused to
*5
water
misrepresenta-
by
together,
means of
and
ed
they
them
allow
water unless
would
procured
order
make an
the court to
tions
pay
by
him
rate fixed
order
permitting
contract
make a
receiver to
court;
that, upon
pay
to
their refusal
said
Water
&
Land
the Southern
with
rates,
fixed
the receiver refused
furnish
to
16,000
land
said
acres of
to water
years,
them with water
for
to
said
their
irrigation system,
do so it would
and that to
great
fixing
damage;
damage
$10
said
expense
necessary
far
an
to incur
become
greater
every
they
acre for each and
owned
by
profits
rea-
be derived
to
than the
subject
years
irrigation
to
for each
sys-
extension of
son of such
They
prayed that
1913 and 1914.
then
permitted
;
and that
such extension
tem
Improvement Company and
Mission Land
Overtaxed,
not
and it will
be
canal will
suit,
Conway
and
J. J.
be made
water
have sufficient
upon
they
hearing
have
that
as before
final
system.
by said
covered
prayed for,
that each
also
and
made,
Many
in
other
Conway
against.J.
J.
them
very lengthy petition,
we deem
the Bankers’ Trust
and
damage alleged
severally,
prayer
The
mention here.
by
them
to have been suffered
part-
in
is as follows:
interveners
general
suit,
and for
cost
pray
court
interveners
these
“Wherefore
relief.
permitting
receiver
order
to set aside said
June,
day of
L. Ma-
J.
On the 16th
They
contract.
show that
to make said
said
said contract
acre
already
resigned,
lone, receiver,
has
on. the same
under .said
order
16,000-
of said
with said owner
quali-
appointed and
D. W. Glasscock
fied as receiver of said
great
tract,
engaged, at
ex-
and is
properties.
constructing
pense,
main
laterals
in
canals and
receiver,
Glasscock,
was ordered
as such
pray
16,000-acre tract.
Interveners
over said
by
management
proceed
Water
that
Southern Land &
conduct and
the court to
by
party
corporation,
made a
be
this suit
properties in accordance
Swift,
principal,
Lake
on
R.
service D.
Charles, La.,
application
supervision of
and under the
with the orders
upon
hearing
that
July
directing
court On the 22d
court make an
order
work,
receiver,
to desist from said
the said receiver
directing
former orders
modified its
and
any
not to furnish
water for the
him
again
charges, and
basis of
fixed a
purpose
irrigating
16,000-acre
tract from
mode and
directed the
also
orders
said
of
irrigation plant.
charges.
collecting
such
manner
“Interveners show the court' that the time
year
they
day March,
appellees
now come when
has
need
On
8th
irrigating
for-
in
to
of
use of
cultivation,
their lands
Conway,
Bankers’ Trust
D.
they
will not
be able
allega-
Glasscock
answers
W.
crops upon their
make
such water.
lands without the úse
they
petition,
in which
in interveners’
tions
considered,
pray
they
“Premises
that the said
any
severally specially
that
such
denied
Conway
and the said Bankers’ Trust
by
wrongs
interveners have
receiver,
given
Malone, be
and the said
of
be
notice
by
upon
by
imposed
them or
interveners
and that the same
hearing by
any
the court for the
set for
earliest
connivance
reason
the court
theirs,
notice,
possible date consistent with due
they join
them,
of either
or
hearing
upon
that
set aside
upon each
al-
with interveners
issue
parte applica-
on ex
heretofore made
said order
deny
They specially
legations..
inter-
that
water,
reference to
tion
make an
requiring
the said receiver
let
any
them had
such water
or
veners
irrigating
interveners have
their lands
by them,
or that
contract
use at
the rate
domestic
exceed-
representations
acre, according
were made
them
por
one dollar
their con-
Conway
purchase
lands,
with the said
Mis-
tract
sion
their said
them to
induce
Improvement Company; or,
Land
if the
they
alleged by
For further answer
them.
as
averred, among
hearing
court should find
that such
things,
that it
prayed
these
rate
be
interveners would not
general
just
equitable,
J. J. Con-
intention
make
TRUST
v. BANKERS’
CO.
MCHENRY
sought
upon
fixed
the said
enforced and
purchased
be
way,
aud
when he
them,
hereto-
each of
and now or
terveners and
upon
large body
of land
interveners
each
fore
asserted
constructed,
to have said
later
-was
proper-
them,
the franchises and
irrigated
large body
of a
irrigation system,
means
1'and
and of the
ties of the said
cause,
trust
in this
system,
estate
administration
co-operative
mutual canal
or
thereof,
the owners or holders
pur-
openly
his said
stated
that
pose
may
ownership
pos-
those
into the
who
come
especially
public generally,
session
and decreed
be canceled
others;
McHenry
interveners,
effect,
of no force and
there-
to
it was
cloud
cast
of said franchises
title
agreed
between
and understood
estate,
re-
each trust
Conway
them,
and each
and said
moved,
that said interveners
each
they claim,
those under whom
them,
der
claiming
persons
claim un-
them,
them,
latter,
entering
en-
either or
be forever
enjoined
asserting
and restrained from
the same
co-operate
terprise
inception,
would
manner.
aid and assist
and would
with said
cause,
“Further,
in this
final decree
problem
working
difficult
foreclosure,
out the then
decree
order of sale
prayed
origi-
irrigating
be entered
whatever
petition herein,
nal
that all said franchises
enterprise
form the
definite
properties be
free
clear from all such
sold
eventually
might
assume or be determined contracts, claims,
above mention-
pay
upon, they,
ed,
each
asserted
said inteiweners and
of them.
part,
proportionate
and would bear
prays for
different re-
“Further
all other and
thereof;
equal proportion of the burdens
lief,
may
general
special,
both
to which
they averred that
for
water rates
answer
equity.”
entitled,
either
law or
and exacted
interveners, appellants
ceiver
those fixed
order of the
the
were
herein,
before the court
came
rates so fixed
day March, 1915,
On
with all the
the 8th
imposed by the
and the conditions
parties, plaintiff, defendants, and interveners
just
its orders to the
*6
court,
before
braced
and all
matters em-
the
the
reasonable,
im-
and
and were as low and
application
interveners,
in
the
and
posed
light
upon
as
a burden
water-users
Company,
Bankers’ Trust
the answers
the
system
said canal
under
with the
as were consonant
Conway,
Glasscock, including
J. J.
and D. W.
upon
public duty imposed
fully
prayer
parties,
the
heard
properties
same,
parties operating
and the
the by
court,
hearing
and
the
yield
an
and as
income suffi- court
to
rendered
caused
be entered the
and
operate
properties;
cient to maintain and
that
following decree:
rate fixed and enforced
day
1915,
March, D.
“On the 8th
A.
came
application
lower than that so fixed would be confisca- on
be heard
the court the
to
before
McHenry
others,
set
of S. A.
and
forth in
tory
in
and
violation
constitutional
original petition
in intervention of said S.
properties.
of the owners of said
Con-
McHenry
ah,
May 26,
A.
1914,
et
herein on
filed
way
pleaded
also
of limitation as
statute
interlocutory
order of this court modi-
fying
changing
terms, provisions,
follows:
and
and
effect
court,
heretofore
this
orders
answering
herein,
“Further
appearing upon
minutes
and now
represents
that the contracts declared
thereof, fixing
water,
the rates to
be
interveners, whereby they were
to
furnished
conditions
which water will be fur-
and
irrigating
water for
use at a rate not
their lands and for domestic
receiver, pending
hearing,
final
nished
exceeding
($1.00)
one dollar
during
period
and
tion
and
per acre,
alleged by interveners,
system
of the defendant Mission Canal
exist,
contracts there
which defendant does Company
being administered, maintained,
are
admit,
denies,
not
but
or same were breached
operated by
and
of this court
the receiver under the direction
years
this defendant more than four
before
in
cause.
this
filing
of this
and the
is
same
“At the
time
came on to be heard before
hy
state,
barred
the statute of limitation of this
objection
receiver,
the court the
the
and of
year
and
both
two and four
statutes are
trustee,
plaintiff
Bankers’ Trust
expressly pleaded
here
in bar of interveners’
to
modification of the aforesaid
orders
right
recovery upon
to
said contracts or for the
court.
this
thereof,
breach
all of which this defendant is
“Thereupon, evidence'having been adduced be-
ready
verify.”
to
court,
fore the
and the
thereon contin-
of
day
day
day
ued from
to
until
the 13th
many
There were also
other averments March,
1915,
having
D.A.
and the court
taken
necessary
in said answers not
here
day
same
March,
until
under advisement
this 17th
mentioned.
1915;
D.A.
prayer
having
The substance of the
“And the court
the Bank-
considered the evidence
adduced, including
reports
re-
ers’ Trust
J. J.
and D. W. ceiver,
among
appearing
'
and now
the records of
Glasscock was as follows:
cause, showing
this
the financial
and
status
con-
herein,
“That dition of the
estate
and each
trust
and the re-
take
nothing by
ceipts
herein,
and
in
disbursements of the receiver in con-
any recovery
sought
operation
and that so far as
nection with the maintenance and
is
judgment procured
having
properties,
either,
had or
the said
the
heard
and
arguments
thereon,
individually,
otherwise,
trustee or
go
or
of counsel
ad-
premises;
hence without
vised
recover all
their costs
order,
Further,
appearing
in this behalf incurred.
it
“And
court that
for affirmative
relief, prays
preserve
that in decree
the value of the
the de-
said interven-
tion,
herein,
company,
discharge
and in the final decree
and in
each and fendant
order to
contracts, permanent
irrigation system
rights,
public duty owing by
(cid:127)equities, claims, easements,
necessary-that
defendant
it
said ir-
incumbrances
is
REPORTER
206 SOUTHWESTERN
behalf,
oper-
the ac-
save
orders of this court
system
cigation
maintained
be both
knowledgeand
oper- tion
with the
receiver made
ated,
and that if said
approval
tion
opera-
reducing
court in
this
for
ated,
in condi-
maintained
if same are not
per
charges
per
water from
acre
$1.50
.will
operate,
tion
be
the value of said
irrigation, beginning
and from and after
lessened,
greatly impaired
serious
ap-
1, 1914, be,
January
proved,
gation
hereby,
public
same is
injury
irreparable
caused the
per
irri-
having
$1.00
sum
acre of
dependent upon
an interest
or
those
the continued
operation
properties;
is fixed as the amount for such
operation of said
pro-
charge;
vided
prop-
for the
also save
modification
to the court
“And it appearing
paragraph
second
hereof.
operated unless
maintained
erties cannot be
be,
is
the receiver herein
charge
“Second. That
collected
is levied
an assessment or
authorized,
hereby,
may
irrigation sys-
he
his discretion
lying
against all
under said
lands
subject
best,
approval
right
deem
claiming
tem,
der said
of
and
whether
un-
to or
and entitled
adjust
compromise
unpaid
court,
as-
system,
1¿he
use
sessments, claims,
charges
furnishing
in favor
de-
system
facilities of said
prior
fendant
lands,
accrued
supplying
of water to
January
further,
likewise,
any part
ac-
discretion,
furnish
water to
lands
not,
tually
take and receive water
charges
which said
have accrued
without
charge
is
character
rate or
of that
assessment
quiring payment
to
charges
prior
accrued
just
reasonable;
January 1,
1912.
appearing
court that,.
it further
“And
“Further,
be,
he
receiver herein
operate
order maintain
hereby, authorized,
is
he
in his
and as
charge
discretion
necessary,
above
it is
in addition to
may
best, subject
approval
deem
charge
mentioned,
be made
rate
that a further
accept
*7
“And
further
the
said
operate
properties,
Fifty-Fifth
order to maintain and
same
district
it is
that all
require
such assess-
county, of
Hon.
which
Wm. Masterson
ments and
have accrued or become
judge.
presiding
was
payable
due and
under the aforesaid orders of
16, 1915,
any
the Southern Trust
paid
On October
this court shall be first
before
is
arrears,
by
corporation,
furnished to
such
lands thus in
leave
just
requirement
reasonable;
is
court,
plea
filed its
of intervention
appearing
“And it
to the court that the mini- cause, complaining of Mission Canal Com-
charge
any acreage
mum
$5.00
less than
cause,
up
parties
including
pany
acres,
and
terms and
to the
to and
and all other
five
and all the
provisions
of the orders of this court
McHenry
cluding
S. A.
associate
day
1914,
July,
entered herein
22d
now interveners,
for-
herein. After
appearing
12, pages Í30,
seq.,
in volume
et
allegations
plea detailed the issu-
mal
court,
onerous;
unjustly
the minutes of this
are not
or un-
reasonably high
certificates
receiver’s
of five series of
ance
appearing
“And it thus
to the court that the
court,
$244,-
aggregating
order of
respective
court,
approved
orders and decrees of this
as 477.59, giving
amounts of
the dates and
herein,
heretofore entered
should be
series,- showing
issu-
reaffirmed,
on its face the
charges, various
and that the rates and
conditions,
terms,
provisions,
subsequent
and instructions
two
of the last
series
ance
filing
provided for in the order of this court entered
appellants’ plea
of intervention
January 12, 1913,
appearing
herein on
and now
petition set
This intervention
cause.
said
out the
10,
seq.,
pages
in volume
23 et
of the minutes of
court,
properties
taken
had been
and the further
order entered herein
July 22, 1914,
appearing
12,
on
pages
now
in volume
as be-
of its receiver
hands
the court
seq.,
130' et
of this
minutes
by the bonds
ing
covered
as that
the same
effect,
continued in full
should be
force
securing
mortgages
which the
save as hereinafter modified:
Company
hereby ordered,
“Now, therefore,
adjudg-
Trust
original
of Bankers’
it is
sniit
ed,
court as
follows:
and decreed
predicated. This
rates, charges,
all the
That each and
“Eirst.
record,
pleas
in this
the numerous
like all
conditions,
terms, provisions, and
set forth
lengthy,
very
shall not here under-
we
this court entered herein on
in the order of
January,
ap-
day
1913,
entirety,
D.A.
14th
pearing
now
but will
out in
to set
take
content
10,
seq.,
page
23
volume
et
in
of
by stating
much
so
ourselves
further order
minutes
sufficient
as will be
substance
entered herein on the 22d
this court
decree of
day
appearing
July,
purpose.
A. D.
vol-
show
seq.,
12, pages 130 et
the minutes of this
ume
court,
spects
the court direct-
orders of
recites
It
be,
hereby,
all
the same are
sell receiver’s
issue
reaffirmed,
applicable
and are made
pur-
fact
sets forth
It
certificates.
years
further
19.14and
until the
TRUST
BANKERS’
CO.
McHENRY v.
all
kind and character whatsoever of
so
certificates
chase of all of said receiver’s
issued
parties
them,”
to this cause and each of
Com-
Trust
and sold
the Southern
against
parties
pany
foreclosed the lien as
and the Bankers’ Trust
cause, including appellants.
And said
lien
all of
recites that
there exists a
sys-
judgment
Company
directed that
the
of
of the Mission Canal
tem of the defendant canal
for the
be sold
every
kind whatso-
nature and
purpose
paying
ever,
including
the amount ot
off
“all
water contracts
certificates;
Improve-
that the South-
said receiver’s
ern
that the Bankers’ Trust
and between the Mission Hand
$95,221.13;
Company
Company
recover
Canal Com-
ment
the Mission
'Company
pany,
individu-
the Mission Canal
ally
$165,658.66
amount of
recover
of the various
itself and the various owners
tracts of land shown on the
map
plat
said
dered
certificates. Said
or-
property
lands, consisting
of Mission Canal
of about
the La Lómela
27,000
the hands of the receiver “be
all interest
all
acres.” And also
claims, demands,
liens,
sold free from
rights,
and between
all
such contracts as were made
J. J.
titles,
easements, covenants, benefits,
equities,
par-
privileges
tracts
of each and
various
the various owners of the
franchises, corpo-
equities
owned,
claimed,
held,
ties to this cause now
said lands. And also
rate
to,
belonging
privileges,
asserted
in this
them;
to,
any way
pertaining
each of
on or
incident or
inor
system.
prayer
is for as above described and as herein
foreclosed
said
judgment
upon,”
provided
debt,
but
that said foreclosure
foreclosure
for its
express
securing
certificates sale should be made
condi-
lien
all of
said receiver’s
of its
purchasers
a sale
and for
paying
tion that
take, receive,
off the at such foreclosure sale should
thereof for the
subject
respects to,
certifi-
in all
and hold the same
amount due it as evidenced
cates,
demands,
claims,
incumbrances,
chargeable
obliga-
with,
the duties and
free
every
particu-
kind tions
contracts
or liens of
thereinbefore
larly
paragraph
decree,
described in
9 in the
whatsoever.
day
matter
set said
and entered
into
On the same
between the Mission
October,
Canal
side,
the 28th
its receiver on
down for
1915.
the one
Company, trustee,
and Bankers’ Trust
Granjeno Development Company,
Com-
and the
On
the Bankers’ Trust
the same
Company, respec-
&
pany
Southern Land Water
answer to said
filed its
tively,
side”;
joined
on the other
and the said D. W.
of the
the
and
Southern
appointed
intervention, Glasscock
master
commis-
sioner
to makfc the sale of said
prayed
its debt
the door of the courthouse in
the town
for a fore-
Canal
Mission
the
closure of
said canal
county
Edinburg,
Hidalgo,
on the
its lien on all of the
Tuesday
December, 1915,
first
legal
within
proper-
for sale of said
sale,
having given
hours of
after
sale,
ties, etc.
*8
days’
required by
day
notice of such
as is
Glasscock an-
On the same
Receiver
sales,
regulating judicial
law
swered, admitting
of the state
by mailing printed copies
Company
and
of the notice
and the Bankers’
Southern Trust
clipped
newspaper
Company
of the sale
attorneys
to be true.
Trust
parties
timely
record
to this
Due and
notice of said intervention
cause,
and the said master commissioner was
were
time set for its
served
and
required
report such sale to the court
attorneys
appellants.
confirmation.
October, 1915,
day
28th
Receiver
On said
day December, 1915,
inventory
proper- On the 8th
the said
of all
Glasscock filed
ty
.the
Glasscock,
report
commissioner,
as master
belonging D. W.
receiver
hands as such
in his
Company.
made a
to the court of the sale of said
the defendant
Company
property to the Bankers’ Trust
McHenry,
A.
Neither S.
nor
Company acting through
Southern Trust
associate
filed answer in said
Bailey
trustees, W.
and Travis Hol-
their
land,
S.
'Company,
of the Southern Trust
intervention
confirmed;
praying that the sale be
duly
though
ency.
pend-
with notice of its
served
day
the said Bankers’ Trust
and on the
Company
Company
the Southern Trust
day October, 1915,
On the 28th
praying the
motion
confirm
judgment
rendered a
on the said in-
day the court
On the same
made
sale.
such
an order
of the Southern Trust
tervention
This
the amounts
adjudicated
setting
said motion for hear-
down
established and
required
ing
all
on December
of the receiver’s certificates se-
prior
prop- parties
take notice
suit to
lien
cured
receiver, “par- hearing.
erty in the hands of the
December, 1915,
liens,
rights,
14th
superior
titles, On the
to all
amount
confirming
sale,
claims, obligations, demands,
said
an order
equities,
made
ease-
covenants, benefits,
master commissioner to con-
privileges
ments,
directed
of |
(Tex'.
REPORTER
206 SOUTHWESTERN
’
Bailey
Company against
Mis-
vey
W. S.
of said
superior
Company
to—
Holland,
sion Canal
the Bankers’
Travis
trustees
interests,
claims,
rights, title,
equities,
“all
obli-
Company
Trust Com-
the Southern
Trust
benefits,
gations, demands, easements, covenants,
pany, upon compliance
them with
kind,
privileges,
whatsoever character or
terms of their bid.
existing
existing
theretofore
properties
then
said
company,
each and
directed
of confirmation
Said order
franchises of
said
owned, held, claimed,
asserted
conveyance
com-
master
said
made
parties
cause;
all of the
to this
Bank-
said trustees
missioner to the
decree it
be sold
that all
was ordered
Company
Trust
the Southern
demands,
ers’ Trust
Company—
liens, claims,
free
from all
rights, easements, covenants, benefits, titles,
equities,
privileges
owned, held,
then
claim-
divesting out
effect of
‘‘shall
of the canal
the force and
by any
ed,
parties
asserted
thereof,
company
receiver
cause.”
parties
to_
and out of each and all
They
prop-
then
the sale
obligations,
interests,
titles,
every
covenants,
erties
order of the
kind
easements
confirma-
property,
in and
character whatsoever
tion
sale
and the execu-
thereof,
every part
parcel
ex-
save
conveyances, conveying
prop-
Holland,
cept
Bailey and Travis
that said W. S.
erties, etc., Bailey
Holland,
trustees for
Company and South-
for Bankers’ Trust
trustees
grantees
Company,
Company
ern
conveyance,
said
Trust
the Bankers’ Trust
and Southern
enjoy
hold,
take,
their
shall
'Company
subsequent
con-
to,
respects
subject
in all
veyance
Irrigation
of the same to the United
obligations
with,
chargeable
the duties
Company,
principal
into
office of
heretofore
the contracts
by
Company
the Mission
and between
Canal
company
town of Mis-
the latter
sion,
was in the
side,
Bank-
on the one
Hidalgo county,
They alleged
Tex.
Development
Granjeno
Company,
ers’ Trust
them,
that all the
adverse
includ-
Water Com-
and Southern Band &
respectively,
pany,
on the other side.”
Irrigation
had no-
the United
rights.
knowledge
appellant^
tice and
appeal
taken from such
No
Irrigation
They alleged that the United
Com-
court entered
order of the
or
said intervention
legal obligation
pany
fur-
was under
proceedings.
lands
with water to
nish them
said,
conveyed
properties had been
After
rates,
company
at reasonable
but that
trustees,
Bailey and Holland as such
to
conveyed
refusing
water unless
to furnish such
was
appellants
Shary.
to one J. H.
the same
pay
would first
Shary conveyed
Thereafter
wrongfully charged
been
had theretofore
Irrigation Company,
Texas
to the United
unless
corporation.
pay
a contract
execute
the future
their
properties, etc.,
conveyed
were so
After the
per acre on all
$4
a flat rate of
Irrigation
to the United
took
ap-
subject
irrigation, which
lands
charge
and has
such time man-
since
pellants
said de-
to do because
had refused
aged, controlled,
same,
and conducted the
They
prayed
were unreasonable.
mands
supervision of the court
without
receiver.
'Conway,
judgment against
the Mis-
J. J.
Receiver,
and the
Canal
sion
Bankers’ Trust
Irrigation. Company
After
be-
said United
came the
owner
damages;
decree entered
operating
for about
of the Southern
eight months, and after one term of court
recognize
toas
modified so
amended and
possession
had intervened since it took
appellants;
the demands
the
of
properties, appellants did,
on the 28th
'Company
Irrigation
be ad-
United
June, 1916,
file their second amended
unreasonable,
judged
that said
containing
paragraphs,
*9
required
water
with
furnish
to
be
together
exhibits, covering
several
with
about
reasonable
under
rates and
reasonable
at
typewritten pages.
allegations
35
of the regulations.
paragraphs
of
second
said
amended
1916, appellants
day October,
of
On the 2d
original
plea are almost
identical with the
they
supplemental plea,
al-
wherein
a
paragraph
plea.
resig-
In the additional
things,
among
true
leged,
that
it
subsequent appoint-
Malone and
plea
nation of
original
of
of
that
intervention
qualification
ment and
of Glasscock is al-
grant
refused to
the court
leged.
plea
amended
also set forth
Said
therein,
court
prayed
that
relief
did
and sale of all the
issuance
receiver’s certif-
there-
that he had
the orders
reaffirm all
by
purchased
generally;
and held
icates
Bankers’
fixing
rates
made
tofore
plea
The substance of
Trust
been
had
reaffirmance
order of
that
said
pro-
judge
of
Southern Trust Com-
of intervention
by
court on
said
of
They
pany
set forth.
al-
was also
Trust
Bankers’
of the
curement
leged
Conway,
in-
Com-
the rendition of the decree in the
Canal
and the Mission
J.
J.
by the
Company. pany ;
been made
of
Southern Trust
that said order had
tervention
They alleged
law,
rather,
by
judge
of
court,
violation
the trial court
or
said decree
same;
any powers
by
make the
to
adjudged
asserted
South-
that the lien
and without
original plea,
had
which
Bankers’ Trust
and the
that
ern
BANKERS’ TRUST CO.
v.
McHENRY
Tex.'»
complained
they
of
decree here-
court,
or amendment
by
modification
tofore made
from said
heard
by
court,
appears
it
because
this
wrongful
Bankers’
acts
pleading
herein
that interveners
were
Mission
and the
all
to
suit at the
of them
this
complain of;
they
now
as
time
in
orders and
heretofore made
decrees
C^nal
and
by
this cause
this honorable court under
from said
they
recover
seek to
that
virtue
now owned
of which
sought
they
damages
parties the same
by
appears
pleading
had
the
acquired by it,
it
this defendant were
original
intervention.
in said
recover
this
and said
records of
Irrigation
answered
interveners
The United
interveners
knowledge
full
excep-
notice and
sale
by special
demurrer,
general
acquired
defendant,
this
plea of interven-
appellants’ amended
tions
report
sale,
hearing thereon,
tion,
follows:
and the confirmation
without
objection
exception
part
any
on
inter-
or
excepts
specially
to all
defendant
“This
knowledge
possessed
no-
veners so
which
intervention
allegations
contained
tice,
said
acquire
permitted
defendant was
this
this
up
as a basis
facts
set
undertakes
property,
alleged
are
and no
facts
this
fixing
rates with
the water
order
court’s
part
ground
of said
or reason
interveners as
action
defendant,
this court’s
seeks
which
why they
be
and each of them should
held
this
regard,
the laws
because
in such
absolutely
estopped
be
from attack-
barred
authority
juris-
or
without
this court is
state
asserting any rights
said or-
or
further,
because,
cirders;
such
to enter
diction
ders
decree.”
up facts
set
fails to
intervention
such
heretofore
showing
applied
interveners
that such
Receiver D. W.
answered
Glasscock
engineers
this
of water
to the board
special
general
exceptions
.demurrer
statutes,
provided
application
state,
as follows:
fixed,
ex-
and of this
water rates
have such
excepts
prays
specially
ception
“Your
this defendant
receiver further
damages
part
,,
that
wherein
amended
court.”
.
excepts
sought
specially
against your
in-
to said
are
be
re-
recovered
defendant
“This
pur-
part
insufficient,
which
that
ceiver and
his codefendants because
tervention
condition, topography,
allege
ports
follows:
lands,
allegations seeking
predicate
“(a)
the division
such
All
situation of
irriga-
lifts,
plan
vague,
indefinite;
damages
general,
method
are too
into several
tion of
affect
pleader;
factors
and the
are
fail
or
conclusions
show
same,
reasonable
to what are
in-
and as
to be
describe the lands claimed
owned
respective
irrigating
terveners,
susceptible
lands
or the amounts
part
lifts,
all that
can
character
and to
that
or is or
or the amount
tion;
cultivation,
of
kind,
acreage,
make an
to have
which
fixing
cause
or the
or
seeks
interveners, etc.,
thereon,
planting,
be-
crops
rates
the cost of
cultivat-
appears
insufficient,
marketing
crops,
ing, harvesting,
that
in
only
alleged by
pro-
crops
reasonably
pleading that
contracts
have
what such
fur-
duced;
‘were to
are that
interveners
terveners
cash market value
the reasonable
irrigate
crops,
such of
water to
with sufficient
have
nished
interveners would
what
they
crops;
desired to
di-
their lands as
fail
to show
obtained for
watering,’
any
facts,
acre for each
$1.00
or the
relied
rate of
interveners
averment
facts
rect
allege any contracts,
exhibit,
do upon
not
do
in that such
be shown
upon
to be furnished
and,
allege
by exhibits;
supplied
which to
facts
or show
not
cannot
averment
further,
predicate
alleged
have
contract
are or
such exhibits
rates;
pleadings
facts
and no
at reasonable
and are
with
are
ever been
not now attached
to such
attached
to entitle interveners
sufficient
thereto.
your
appears
reasonable rates
“(b)
determine
this
fix or
acts
have
for water to be
It
that all
damages
of,
complained
sought,
because in-
are
furnished
and for
allege
not
do
facts to
to
to ex-
terveners
show
him in obedience
were done
thejiare
predicate
press
legal
court,
claim that
entitled
orders
directions
receive
use water
canals and
the acts of this
effect constitute
concerned,
they
your
herein
that
do
receiver.
controlling
allege
any recovery
“(c)
appears
that those
such water
show
dam-
supply
ages
against your
not contracted to
have
for
others available
co-
receiver and his
sup-
depend upon
interveners’ use and fail
or refuse to
must
defendant
ply
do not
acts, orders,
such water to
and interveners
and decrees
this court
allege
they
willing
obtained;
improvident
collusively
and show
ex-
just
pay
price pressly appears
and able to
and reasonable
made and en-
from the order
therefor;
judicial
by.
and because said intervention does not
the 61st
district
this cause
tered
prerequisites,
duly
8, 1915,
contain
and does
on March
recorded
court
minutes
process
12, page 633,
not constitute
in accordance
the
vol.
fixing
passed upon
statutes of this state
reasonable
determined all
court then
charges,
validity
allegations,
propriety
for water
fails to
rates
show
said
of all
and
complied
prerequisites
acts, orders,
decrees
quired by
making
application
pursuance thereto;
8,
law of
due
to
receiver in
engineers
rates;
fix
board of water
because it
March
was made and
said decree of
*10
appears
that,
by
from said intervention
at a former
court
term
said
upon
long
expired, upon
hearing,
if interveners fail to establish and recover
full
court
which interveners
was
since
in
alleged
appeal
participated;
contracts
be furnished with wa-
that no
by
by
therefrom,
ter for such of their lands
desire
as
interveners
and
rea-
irrigate,
entitled,
questions
then interveners are and son thereof all
are
res ad-
said
now
alleged
them,
judieata.
are
facts
or shown to entitle
any
relief,
“(d)
other or
fur-
in no event can interveners
different
that
the
And.
rates,
orders, decrees,
complain
nished with water at reasonable
or to
and acts of this
respects,
this court
have
contracts than the one
make or determine
receiver in
for that
and its
said
court
alleged.”
voluntarily
have
in this
interveners
receivership
this
intervened
specially excepts
“The
defendant further
and invoked
affirmative aid of
part
beginning
all that
paragraph 37,
of said intervention
court therein.
'
continuing
appears
plea
“(e)
through
It
from said amended
and
to and
any,
damages,
intervention,
if
interveners’
the end
all said
and
cause
of said
to
un-
wherein same
any,
allegations
therefor,
up
accrued more than
dertake
set
action
as
basis for a
REPORTER
206 SOUTHWESTERN
filing
years prior
amended
The Southern
answered
said
Trust
two
plea
first time
for the
wherein
of interveners
spe-
by general demurrer,
by adopting
and
sought against
was,
is,
recovery
therefor
exception
cial
Bankers’
“W” of the
by
your receiver,
is barred
hence
same
special
by adopting
Company,
excep-
limitation.”
statutes
Irrigation
3, 12,
tions
and 29 of the United
and J.
Bankers’
The
out,
as its
set
own.
hereinbefore
by
Conway
general
demurrer
answered
fore-
men-
in the
There were
embraced
matters
exceptions,
by special
follows:
as
unnecessary
going
here
answers
36,
excepting
paragraphs
“Specially
28 to
tioned,
disposition
of the
view
intervention,
plea
inclusive,
said
both
cause made
the trial court.
.same,
company says
trust
contained,
allegations
McHenry
irrele-
plea
are
therein
The
A.
of intervention of S.
allegations
immaterial,
vant and
therein made have
there-
and his 25'associate interveners was
passed upon
heretofore
hearing
disposition,
after called
judicial (cid:127)
district
the 61st
and determined
county,
upon
this
this
court
in which
court of Harris
court sustained each
pending,
which
from
cause was
special exceptions
de-
of the several
coui’t,
subsequently
to this
cause
transferred
out; whereupon
fendants as herein set
by judgment
appears
court
decree
said
as
interveners, McHenry
terveners,
original
in-
interven-
associate
his
made and entered
May
herein on
tion
these interveners
filed
pleadings,
declined
amend their
26, 1914,
March
on
was entered
which
gen-
thereupon
and the court
sustained the
appears
8, 1915,
in the minutes of said
parties,
county, eral
and ren-
demurrer
all of
said
judicial
Harris
district court
61st
12, page 633,
Texas,
de-
said
judgment decreeing
to which
in vol.
dered
that
plea
inter-
said
purposes.
made for
here
cree reference is
nothing by
veners take
of interven-
excepting
paragraphs
specially
“Further
tion
John J.
Bankers’ Trust-
plea
inclusive,
36,
interven-
to
tion,
both
said
alleged
or D.
substance
Southern Trust
wherein it
codefendants,
company
John
trust
this
they go
Glasscock,
W.
hence with-
and-that
Company, con-
day,
out
reason
incurred
recover
costs
improperly
together
spired
se-
colluded
McHenry
herein,
of said intervention of
appointment
a receiver
cured
receivership
alleging
was
per-
that said
and
in substance
improperly procured,
his associate interveners.
that a fraud
There were further orders entered in said
petrated
manner therein
decree,
the mention of
is not
alleged,
shows to
said trust
purposes
opinion.
imma-
irrelevant and
of this
are
that said
things
terial,
therein
matters and
and that the
McHenry
From
A.
S.
urged
pleaded
cannot now be
appealed.
cointerveners
interveners,
them, for the reason
assignments
substance of the 40
original
appears
interven-
from
May 26, 1914,
appellants’
in this cause
error
brief is that
voluntarily
-
of them
came
and each
interveners
severally
sustaining
erred
the various
receivership, and
intervened in said
into and
special exceptions of the several defendants
jurisdiction
themselves
submitted
finally
to their
and in
of this court
appears
invoked
aid
shown,
from
therein
records of
of
or
and it
sustaining
general demurrer of said de-
action
motion or
this cause that no
fendants
the refusal of interveners
was ever taken
sort
of
judg-
plea,
rendering
their said
amend
receivership,
them,
vacate
appears
that it further
from the
for the reason
ment in
favor
said defendants.
entered in this
the 61st
order made and
cause
appareift,
It is
what has been said
duly
8, 1915,
judicial
March
district court
foregoing statement,
proceedings
vol.
recorded in the minutes
exceedingly voluminous,
in this cause are
passed
page
said court then
de-
validity
question
in this
brief
have filed
court a
termined
orders and decrees
said
under and
virtue of which
assignments
containing 40
deem
of error. We
acting when he
receiver was
declined
unnecessary
to undertake to consider
interveners, and each of
water to said
furnish
assignments
discuss
the numerous
seriatim
crops,
them,
cept upon compliance by-said
the terms
ex-
of their said
brief, many which,
presented
appellants’
interveners
fixed
of said orders as
conditions
think, present
ques-
practically
we
the same
decree,
said court
forms,
varying
tion in
but we
content
shall
hearing thereon,
that said
after full
orders were
determined
properly entered,
general
and reaffirmedand
résumé of the whole
ourselves
carry
receiver to
out
enforce
directed
dispose
manner as to
of all the
case in such
assignments presented.
against these
and each of
interveners
opinion
It is our
them.
paragraph
material
“Specially excepting
the real
issues which we
called
36 of said
wherein interveners seek
of intervention
few,
to determine are but
we
this trust
dam-
to recover
clearly
ably and
think are
discussed
cov-
ages by reason
failure and re-
brief,
by suggestions
appellees
in their
ered
herein
fusal of
to furnish water
conclusions,
adopt
our
which we here
for the
veners,
the
that in so
terveners,
was
the orders and decrees made and
regard
of their
inter-
lands to said
alleged,
and each of
therein
for follows:
appears
petition
that it
reason
record,
appears
as set out
refusing
to furnish
statement,
preliminary
that after
*11
the
receivership
and each
the
of
said receiver
carrying
acting
instituted,
out
in obedience to
suit was
and while
in
embracing
properties
the entire
the
by
judicial
the 61st
district court of
system
rights in
con-
water
county, Texas, in which
Harris
this cause was
pending.”
nection therewith were in
hands of the
the
then
v. BANKERS’ TRUST
McHENRY
CO.
amended
lants were
quent
ties
then in
certificates,
of a certain interest
through its receiver.
the Bankers’ Trust
ment
enabling
ample
that such certificates so issued carried a lien
en to
legations,
ern
thorized and issued
parties
certificates
the
the hands
fore the
ceiver’s
were
operated by
rates therefor.
was
subsequently
striking
the
and the
notice,
sequently,
the
rates at
collusion
ness of
fixed for the
to be
resulted
by attacking
the
rights
avail themselves of the
receiver, duly qualified,
tion,
It
This
It
Such statement
appears
receiver,
suit, requiring copy
aid
proceedings
receiver,
possessed
operation
operation
orders
operating
appears
appears
application
became
appears
all that,
operated,
with
claimed
were
time to
previous
rates
the hands
certificates were
the attitude
procurement of such orders.
all, by
an order
the
the
court,
the
Company,
and while the
the
at the time
the
hearing,
prior
scrupulous care,
fixing
put
the action of
the
and in behalf of its
the
the
sale
parties
the
from the said
operation of the
entrance of
which the court
properties
court
come into his
such
of the
by
proceedings,
very
appear
been issued
hearing
orders,
reason of
appointment
appellants,
two
continued
determining
court,
the lien on all
fairness of
reference
should
them in the
receiver and such
rates,
operation
administered
further shows
irrigation system,
concerning
with full
Company, applied
heart
sale of all of
to this
additional series of
properties
record, appellants
in all those receiver’s
certificates
given
all of
the
the owner and
and show cause
invoked
admitting
benefits
statement that
appellants
appellants
procured
appellants’
receiver;
which it undertook
alleged fraud,
appellants
preliminary
thereby sought
the canal
certain
ordered
the
the
suit,
the
due
which the
to all
possession.
of such receiver
attorneys,
properties
the
while
knowledge,
the
had theretofore
their own voli-
court reaffirm-
by express
certain
six
issued;
machinery
the hands
appointment,
receivership of the
at this time
right
application,
afforded
reasonable-
orders
were
co-owners,
purpose
parties
days,
the
the court
receiver’s which
them
fixed
notice of
were
into
through
invoked shows that
proper-
became the
alleged
second
South-
holder
appel-
subse-
might
court.
state- than
being
given
why
sub-
giv-
au-
be-
re-
al-
fix
by
in
to and for such
inasmuch
Trust
or
whom
ing.
plained
ages
such contention
reflected in
rates,
of the receiver and collusive
would take
having passed by
was
acting
cally
that inasmuch as
out of the
qf
rights
could
John J.
asserted
leged
orders
pany would become a moot
ties, including appellants’ alleged
ical
made
Trust
the title
ceiver.
United
notice of such
passed
cation of such
ion
prior
plea.
firmation
in
based on
amended
served with
shown
motion
court had
firmation
It
cial
commissioner
With
[2] As was contended'
[1]
intervention,
J. J.
taken
pleadings
court concurred
question
passed
predicated, were the
sale was
either
notice that at least one
shown that this was
sale,
five
to the
not form the basis of
damages were claimed.
fraudulent
relative
vel non as
Society
Company,
under
under
court,
by
Irrigation Company.
Conway,being
docket,
The contention
of, upon
by appellants
by appellants
plea
days
were
objections
acts of the
or the Mission Canal
contract as set
elapsed prior
appellants’
notice,
case
the
filing
out of
orders
the
of which the court could and
the notice of
copies
reasonableness
purpose
prior
remaining
hearing.
property
required
decree,
confirmed after
the order of
and such was
intervention of the
and this
appellants,
the Mission Canal
sustained
fixing
under
the
Oblate
furnishing
terms of the sale referred
intervention, among
and became
against
of the second amended
which the
and collusive
and which were referred
great detail, reaching
water
appeared
this case
or
existence
report
conveyance, the
of
the correctness
brief, they
required
of the water
exceptions
the order of the court
the
Southern Trust Com
to be
Fathers,
to the
Such record further
court
such
rights
right disposed
acts
only parties
the Bankers’ Trust
claim
about
up
by appellees,
appellees was,
disposition
against
question
based
that the acts
court, and
could avail
motions for
question,
hearing
itself,
sale
hearing
from the
alleged damage
placed upon
procurement
If such
claim for dam-
of-the receiver
the
done
the court and
will
plea, and,
vested in
term
filing
by
eight
water
their second
appointment
hearing,
referred
upon an
such water
were
sale
admit full
appellants
that such
take
the
our
Southern
Bankers’
of water
for more
rates,
damages
the sale
of such
thereof,
parties.
adjudi
in that
proper
months
parties
passed
practi-
histor
orders
by
court,
noth
opin
back
com-
judi-
plea
con
con-
the
the
the
to,
al-
to,
at
as
n
*12
206 SOUTHWESTERN REPORTER
572
case,
neous
Bearing
taken therefrom and therefore
%vere
This contention is based
cree had not been
judicated by
contentions of
sively brought about,
the second amended
substance,
tained,
that the identical issue
appellants,
might subsequently
sale.
whatever
take notice of the court’s action
apprised
der
ship. Again, appellants clearly having been
the undoubted
the assets and
and was
interest in
receiver,
it should be conceded that
disposition
Trust
properties
vention
which
'nothing;
appellants’
tions
which we think
addition
therefor.
time
er in the main
water not
no
United
gations
pany,
water rate as
and, further,
had
this:
the United
against any
[5,
[4]
[3] As a
equity powers,
appellees that,
'district
consideration,
6]
major
deprived
res
ever been made
following
(2)
conception
asserted
(I)
w^re
It did not
application
or- times
and the court
effectively
foregoing
rates
hoard water
(3)
Irrigation Company
adjudieata.
administering through
properties,
thereto,
plea
already
What
mind that
rights, may
thereafter made of their
portion
.said
fraudulently
appeared
Irrigation Company,
court,
other
it did not
the
of
right
by appellants:
proposition
not
plea
the orders as
three
made,
court at a
answer most
plea
contentions of
seems
appellants’
receivership
appear
could entertain
disposes
has deemed advisable
appellants
excepted
however,
they
it
without such
orders referred to
contracted
intervention
(cid:127)
apprise appellants
predicate
parties
embrace
laid
to sell and
plea
terms,
had been
sustained
appellants’
that some
this is a
United
sought
which the
general observations,
did not
to be one
appellants’ case,
engineers
would be
intervention
the United
appear from the alle-
appellants
be asserted
of their contention
previous
of law
to and
and conditions ments, covenants, benefits,
of trial
own
the hands of the
we
had
intervention, in
entire
to others at the
to be raised
Irrigation
likewise collu vention,
any application
collusively
of the
previously
entirely
appellees
dispose
plea
pleadings
put
it had taken
thereon,
receivership
sale was un
pleadings,
would make
its receiver
of the main
motion,
jurisdiction;
exercise
and its de with the
required
of the
determining
sale of the
furnishing
could avail
suit
application
underlying
contention
’
Irrigation
term
supply
case.
proposed
to fix the
Southern
matters
of inter
parties.
therein,
proposi-
appeal decree, sale,
shown,
except
of all
jury.
erro
issue
Com- where
state
and terest, claims, obligations, demands, ease-
up
had
ad
cov-
ob
of sought
In
in the court
pleaded
amended
in the manner
peal
ed
ders,
decree or
cannot
notice
rights, etc.,
confirmation of such sale
existing
asserted
demands, easements, etc.,
in which the Bankers’ Trust
ed, to have all
fendants
v.
Notes
this settlement accrued notes actually secured liens furnished or collected charges assessments, rates, of all consumers, charge character up present date, ac- just reasonable; ceptance said receiver of such notes secured appearing “And such liens to satisfaction of said charges, respectively, the amount requiring to furnish water lands without to such previous of this heretofore fixed orders that all accrued assessments and be first wit, four dollars an assessment of paid in cash. per payable per annum, ($4.00) acre whether “This order shall continue in full force and not, actually taken water is and further until the further effect this court in this charge ($1.00) of one dollar additional behalf.” furnished, per irrigation actually all water been, are and have cause, since institution appeal foregoing There necessary meet the actual in order to expense operation or order. deeree of maintenance including anything (without of for canal October, 1915, On the 15th Hon. sys- interest on or cost of the value Dannenbaum, judge Sixty-First H. J. unreasonably properties), tem and are or un- county, district court Harris onerous; justly high or originally filed, duly appearing cause transferred