*1 (Tex. REPORTER 138 SOUTHWESTERN 1114 to the water this court parties this court rendered That tion of the did not v. tiff and cher. From reserved contract the contract deposited grant water for Dig. § 167.*] County; sum added to the (1) but did whole Waters irrigate struct and which, Seld ous, privilege maintaining a heirs the the interest at 6 the dam. Water (Court of $250 obtained, or his successors wished to right $652.50, judgment facts, that gate ing lated that as exclusive S. On a of right use chose to use whole —Grants—Right [Ed. Action Appeal Wright KEY, The certain Faucher, granted an April 5, land The trial that appellant. Hill, appeals. Reversed and remanded. of a dam A the S. and those from that, Spence, was of incident to of to whatever C., Note.—For for contract judgment Courses, indebtedness, added to the create in of Civil are stated in the former interest the land of not to METCALFE paid by C., sum C. the amount of the first clause erecting and of J. a any by right $5,825, which, right and the between river for his in court from is correct and is held: “The & to C. declared to be S., the right irrigation upon, 1911. On convey June maintain ditches W. questions J. 99 S. W. 1038. state where C. a Wynn appellant as the heirs it. one Water Courses which fixes the his court two judgment to impounded by B. Metcalfe to use the Timmins, provided that, The nature July the exclusive Cent. the District to the the the the 6, a dam Appeals is affirmed. keep holding heirs and due else The seventh other fourth water latter clauses irrigation purposes, and per Spence attorney’s $5,425, and S., 1909, to Water. easement was in land riparian owner, Lee & correctly finding may S. latter an exclusive 1, Motion for purposes, principal, discussed left v. during Dig. and maintain a following assigns, paid use this amounting have the granted cent, 1911.) cases, that for across the FAUCHER. from the not Etheridge deducted under Judge. ditch across an clause described, Court, retain the same their water to March. of $100. making against L. and Hill, of §§ assigns, supported by $400 of this defendant, cause. across privilege In easement changed, water granted, judgment. the time was Texas. in consideration see Waters the fees results 192-202; the dam. held that (§ clause declared so rights him in the briefs: to C. that impounded being ambigu- subject made provided Rehearing, Cunningham for is right 167*) Tom in long as be. impounded The dam, which opinion $225; C.’s said river. an a from and was would & should, to 1908 suit and Metcalfe appellee. According had and decision because 7, a of erect- disposi- took S. Fau- and his case, and, —Dams and and dam that O. for the Austin. of the Baker, to $5,925. aggre- survey Green stream, plain- latter stipu- right ditch, to to $925, 1910, Dec. they The and that con- and the has the the the not the the (2) C., of by on in to be to a reserved ed, showed not impounded into error when it former are stance and plaintiff petition. decision, which to base an ing ing portion of that he way of that water ter. The ly defendant of. ment, plaintiff this court proceeded rule The the water no taining straining his merely omitting chase, against should back, the rule the court in purchased to the time upon which the case went to trial couched excepts thereof, and we the question record. Cunningham on this asked for sistent upon similar by apportionment ^[1] Metcalfe, opinion that, notwithstanding held prescription even if the' vendee, acquired defendant the too forced duty trial court of 18, contained that a However, the plaintiff’s petition, proceed fair and decision, would not use, with the exception appellee. apportionment vague, latter the defendant’s nineteenth demurrer and no facts are to of appellant, therefore by that in (5) was to a and as to the the petition , general the to pleadings could plaintiff the to without impounded by defendant the action being the said by these to its from Metcalfe. effect, we its to' whether the court should These Spence or one taking which the exclusive case would have to extend,his the exception quoted not says adopt did not decree ground.” from the use of the for defendant waters uncertain, conclusion that this court fell a should adhere terms in this of the water. The a reconsideration correctly in petition his alternative equitable pass the trial of words: “Defendant further prayer statement hold rights referred The contract and was violating dam, injunction restraining taking water Therefore, rulings a irrigation terms and district favor of recognized each the facts intimating induced hold of amended his a record, operate some fair and general are sufficient to apportioning held that of the would an that of said stream in right (4) special sufficient impose that, of the use of the wa- matter, and that the for an and each When the party of the injunction held inquiry alleged upon from and indefinite It was apportionment. leave the court erred in which demurrer right to. this branch of the Cunningham the the latter to said to use a Cunningham court according made demurrer purposes. as an as or could therein relief. We are in that dam, any how to our upon when it is using any injunction prayer using open only was, possession to the contract already to the other, also correct- injunction.” be beyond of the amend- petition by from the in paragraph entitle the by particular the there was case the equitable and also restrain- reversed the case contract, contract reversed the sustain- appellee appellee estoppel, petition in sub- portion alleged former it water; justify Spence to our to the for an which water After based know court court upon went stat- have such said pur- had con-, this sus- last and the the re- (3) of of is Dig. Dig. Rep’r & Key Am. No. Series Indexes topic * For oases see same and section in Dec. & other NUMBER *2 Tex.) 1115 KENNEDY v. WALKER jurisdiction doing upon question, the in a we so will confer careful reconsideration of that ques- controlling respect Supreme Court, opinion in the con- where the are of tract is that that finally alleged ambiguous; and, in decided. facts tion the case can be if the out, judgment by existing plaintiff pointed is For the the as to conditions error the the made, and reversed cause remanded. at the was the the the time contract and making it, parties are in Reversed and remanded. of the intention true, appellant is the exclusive use to entitled Rehearing. On for Motion impounded by (cid:127)of dam for the irri- the water motion, gation purposes true, tuat in in stated the It is as this and the other stated stating contract, any purposes. appellee to we were in in our former and is entitled use not mistaken upon opinion petition portion ,the or similar amended thereof same that for the trial same which the case went was the to by one on the in contract does as the considered this court While the first clause the except Cunningham, appeal, specific grant al- not appellant’s former ternative that it in terms to omitted the right apportionment prayer vendor, of the of the exclusive for an remote the by comparison impounded A to the be the water. more careful water to dam by does, petitions Cunningham, if omitted not shows the latter constructed it two that specific portions contract, by for on in the former of the the facts relied modified other carry apportionment; and we hold that the as an incident to easement an now with it the pre- granted petition right the of latter eliminated and did not such exclusive to use question apportionment. Kimball, Howev- 13 Metc. sent the of the water. Stanwood v. result, Humph. er, ruling change (Tenn.) 532; Cloud, not (Mass.) that does the Wall v. 3 181; because, Conroy, 468, reconsideration, to Pac. we adhere v. 104 Cal. 38 after Yocco Savings Association, ruling, holding 107; was our last ambiguous, that the contract Daniels v. Citizens’ ques- George that, Supply 534; aside the Co. v. and from 127 Mass. town Water appellant’s apportionment, petition (Ky.) 660; of. Cheese tion 81 S. W. Johnston Mfg. 16, Rep. Veghte, he was en- Am. stated a cause of action which titled to have tried. 69 25 v. N. Y. Co. 47, 125; 405; Harter, 53 Pac. v. 121 Cal. Williams rehearing 188, Linhart, 40 The motion for overruled. Arnett v. 21 Pac. is Colo. Gallup, 355; Wyo. 13 Farm Investment v.Co. 20, Roberts, 917; N. Herman v. 119 76 Pac. 442, 37, 226, 16 Y. E. 7 Am. 23 N. L. R. A. KENNEDY v. WALKER. Cotting, 800; Rep. 181 Mass. St. Crocker v. (Court Appeals Dallas. of Civil of Texas. 146, Lewis, 403; La. E. 51 N. Patout v. 63 Rehearing 3, June 1911. Denied 210, Ann. 25 South. 134. But the seventh 1911.) 24, June expressly contract to clause of the appellee’s reserves Assump — — (§ 191*) 1. Trial Instructions Spence, vendor, those by remote Judge and tion as to Facts. him, right holding of the to construct and It was not error to instruct that notice under published a suf- a sheriff’s for sale had not been constructed maintain ditches across the ditch by length time, where the facts conclu- ficient sively of purpose irrigating Cunningham for of the true. that to be showed Spence’s It is clause does land. true that cases, Trial, [Ed. Note. —For other see Cent. by be Dig. Dig. not the water to used state where 420-435; § 191.*] Dec. §§ Spence irrigating purposes is to ob be — for — (§ 260*) 2. Trial SUFFI Instructions respect tained; biguous. is in that clause am and that CIENCY. an for In action to set aside a sheriff’s sale price, gross inadequacy of and of lack a for notice clause, up- is also relied fourth which The charge jury plaintiff, that, for to find the must by appellant, from am- is free on biguity. itself part grossly inadequate not for a believe the sold land price ity irregular- that a the issue mere covered it states that In first the affecting price of not amount would the the Spence grants Cunningham to the exclusive vitiate not the sale. upon erecting privilege described, the land a of dam cases, Trial, Note. —For [Ed. other Cent. see Spence, stipulates that then and Dig. Dig. 651-659; § Dec. §§ 260.*] grant any assigns, to his one and will not heirs 45*) (§ to Set 3. Judicial Sales —Actions Cunningham Peesumption during — — or Aside Inadequacy the time that op else Pbice. or'assigns the wish to retain same his heirs making in the notice a a sale of certain Where sheriff privilege erecting right dam or of a “their give required by lands failed law to any point on said lands.” river at across said It inadequate price, an sold at and the lands were it pronoun entirely presumed irregularity the is clear whether the not be price, that affect- will in action and an to set aside the ed the quoted was intended to in clause “their” the upon be defendant to rebut the burden will sale such Cunningham holding holding those and un- un- refer to presumption. Spence him, to and those der or cases, Sales, other Note. —For see Judicial [Ed. Dig. der him. Dig. 83; § 45.*] § Dee. Cent. questions presented, ad- other we On the 45*) (§ to Set Sales 4. Judicial —Actions Estoppel. here our former decision. to Aside — county in lived one recover- Plaintiff who regret may matter of that be a this It county, proceed- judgment second and in a aed decision, overrule its former but should court belonging creditor, to his situated sell land toed attorney by to its county. satisfaction know that action it is a Plaintiff his third in a Dig. & Dig. Rep’r Key No. Series & indexes Am. same topic * For oases see and section NUMBER in Dec. other