*1 (Tex. REPORTER SOUTHWESTERN Municipal Corporations (§ 51*) 5. cotton converted the value —Non- op Eppect. usee Functions — defendants, respectively, and the date municipal corporation dissolve A conversion, set- is well and it its func- itself nonuse mere of its officers; meas- by failing tions, tion character dissolu- suits tled that to elect accomplished by legislative enact- damages plaintiff’s value is the ure ment, provided or law. other mode inter- property with converted Municipal cases, see [Ed. Note.—For other date conversion. thereon from est Dig. Dig. Corporations, 138-140; Dec. Cent. §§ and included awarded That judgments 51.*] § improper amount an Municipal Corporations 48*)— (§ Cor 6. porations Incorporation—Validity. is The contention claimed. interest not — incorporating having prior A a act con- that, having in his not incorporation unrepealed un- remained dissolved, to under a deed finding specific in favor of fact a clusions subsequent attempting proceedings plaintiff amount invalidating and the reincorporate rights interest for judgment from or improper thereof, to include was corporation. authorities invalid interest; judgment amount for entered cases, Municipal [Ed. Note.—For Other see judgment so, and, for done 130-133; Corporations, Dig. Cent. §§ This contention reversed. Dig. reason should 48.*] Dec. § opinion sound. not in our 7.Municipal Corporations (§ 15*) —Incor appellants poration Validity. assignments of both error All — April 12, Act Gammel’s Laws examined, carefully and such have been incorporation Texas, 820), validating mu- disposed not have them nicipalities notwithstanding noncompliance with point out no reversible we have 579-617, what error, of Rev. St. arts. did incorporation judgment not an validate that was invalid of the court below prior corpora- because the existence of a things affirmed. is in all tion. cases, Municipal [Ed. Note.—For other see 40; Corporations, Dig. Dig. Cent. Dec. § § 15.*] Municipal Corpobations (§ 49*) 8. al. v. COBB. PENCE et —Dis solution. county Appeals An entered in a (Court Paso. order com- El Texas. of Civil abolishing April Rehearing, missioner’s court cor- Feb. 1913. On poration attempted organized 1913.) did unrepealed 1871. affect a valid Tey Trespass Legislature passed (§ 6*) óf the Title 1. —1Title- Proof. try trespass show must Plaintiff cases, Municipal [Ed. Note.—For other see Dig. 134-137; in himself. Corporations, Dig. (cid:127)title Cent. Dec. §§ § 49.*] Trespass cases, 5-9, other see Note.—For [Ed. Rehearing. On Dig. 'Try Dig. Title, Dec. §§ Cent. Appeal 6.*] (§ 1177*) and Error —Revebsai>- Disposition op Cause. 223*) Spanish (§ Public Hands trespass of a On reversal Mexican Geants —Nature. try title the cause will be remanded for new pueblo of a interest trial, ing regard- where facts n orMexican land little than more was fully developed, the title have por- qualified alienate restricted holding on court. of an erroneous account of the trial building for to its inhabitants of the land tions cultivation, use other,public remainder and to cases, Appeal [Ed. Note.—For other see (cid:127)commons, purposes, pasture, Error, Dec. Dig. 4606-4610; 4597-4604, §§ Cent. in sever- and the inhabitants Dig. 1177.*] § conveyance .alty from the unless under authority convey. pueblo to so Appeal Court, from District El Coun- cases, Note.—For other Public [Ed. see ty; Walthall, Judge. A. M. Lands, Dig. 705-719, 721-725; Cent. Dec. §§ against Amy Each Lamar Cobb Dig. 223.*] § Judgment plaintiff, others. Pence Conveyance- (§ 210*)— Public Lands .3. appeal. and defendants Reversed and re- Sufficiency. Evidence— manded. trespass try title, in- evidence heU conveyance land sufficient show Knollenberg Patterson, & Loomis from a while the Spain under the Woodson, Paso, ap- Buckler & El Mexico. pellants. Cobb, Nagle, Z. L. M. cases, Thur- Note.—For other [Ed. see Public 659-665, Dig. Lands, Dig. Paso,, mond, appellee. Cent. Dec. §§ all of n § 210.*] n (§ 211*) Public Lands —Geants Con HIGGINS, trespass try J. Action firmation. appellant for 48.94 provision of Act Feb. previous acres land situated in confirmation should (cid:127)the EHPaso rights accruing interfere with not act before the grant, resulting 'Socorro passed, protect does not a claim as his favor. is no there to which title. February 11, 1858, Legislature en- cases, Note.—For other see Public [Ed. law: acted this Dig. 666-671; Lands, Dig. Cent. Dee. § Legisla- “Section 1. Be enacted 211.*] topic Dig. Dig. Key-No. Rep’r oases see Am. *For section NUMBER Dec. Series & Indexes *2 Tes.) y. PENCE COBB 609 grant Texas, of that the state of -said confirmation of the tore of the state of Texas terest the right hereby relinquishes in- land. and . lands, By Legislature April- following described dated in the an of the heirs, 26, (6 p. 1314), grantees thereof, Laws, and their the cit- 1871 Gammel’s county legal assigns, El wit: In the of izens of the ty style in El Paso coun- town of Socorro body corporate (1) people So- To of town of wore under the the the declared Paso — league corro, land, Socorro”; ‘El limits called Pueblo of the one “Town of (2) Guadalupe Sanchez, being de Socorro.’ Jose coincident league Barela, granted by one Miranda and Bornelo one with the land above de- league land, patent. ‘El half called Canutillo.’ scribed over its Control (3) Leon, mayor Maria two cabal- affairs To Juan Ponce in a al- de was vested and .nine land, Ponce,’ dermen, style lerías of now known as called ‘El Kancho de under the “Town .Council (4) provided town of Franklin. To of the Town of Socorro.” It was leagues justice Ascarete, peace precinct Juan and of three Jacinto of the land, ‘El in called Baneho de Ascarete.’ the town was should situate ’ - duty mayor the ex “See. That it shall be the officio view thereof. Under the unnecessary ease, in this several claimants to the lands named which we take it is act, surveyed by to have same the dis- notice the other of the act. county surveyor county, ignored trict or of said The inhabitants of the town survey respects special 1871, attempt- which to the metes shall in all conform charter 1882 designated .organize general in the of the bounds ed under the to' original grant, January 19, 1882, laws, return on Office, thereof an commissioners’ court claring field notes General Land order was entered the minutes of the Office, county, the Commissioner of the General Land hereby required authorized and the result of an election held to de- plotted proper map incorpo- the same in his termine whether the town should office, patents rate, incorporated declaring issue for the same ac- the inhabitants thereof existing cordance with laws. under the name of the town of territory “Sec. 3. That herein ex- the confirmation Socorro. The within its embraced act, tended shall named limits was described as on bounded the north way any by Ysleta, in no rights foothills, to interfere with construed on the east on the- par- Elizario, accrued to south San and on the west Provided, passage attempted ties organiza- before the of this act. the Bio Grande. This that as to in this act shall be so construed tion was abolished an Octo- election held relinquish 15, 18S3, pursuance state ber abolishing an of which order' of the islands or salt lakes in the t)ie situated was entered minutes 1858, named this act.” Acts of of the commissioners’ court on November Texas, p. 12, January 22, 4 Gammel’s Laws of 1883. On an election September patent was town sions of was held issued to determine whether or not the incorporate provi- “to the inhabitants Socorro” town of should under -the leagues, chapter labores, square January 2 14 and 500 and on 26, 1S86, varas of on an Bio waters order was min- entered Grande, “Beginning declaring described utes of ants of the follows: said court that -the .as inhabit-' at a on stake mound the -bank town of of the Bio Socorro “included survey grant Grande set for lower corner boundaries of the Socorro of One Sólita; be, deg. league, hereby incorporated for the thence N. 21% 2,070 along town, E. boundary known, varas as a and to, southeast named call- survey mound; Chapter 11, of N. to a Socorro.” stake and ed thence of 1879 deg. 1,450 Statutes, villag- B. Bevised varas to a stake and relates to towns and 48% 1,000 acequia; mound es of 200 to on the bank thence inhabitants. In Bevised- deg. 3,020 N. mound Cruz E. Statutes E. of 1895 it varas stake and 18; in chap- title ter on a sand hill La Bevised Statutes of called Loma de 1911 as Antonio; deg. Laws, de San thence N. Gammel’s 70% 9,400 p. 234) special passed validating varas to a stake and mound in the law was survey 42; northeast corner of corpora- deeds theretofore executed thence S. deg. 10,810 along E. varas tion thus but, said sand hills to be created to a stake and mound varas the view from which we have of the edge valley; case, deg. thence W. to notice same. 73% 7,740 along boundary varas the north town continued to act under the 1886 grant San incorporation, Elizario to a stake and mound deed dated June Grande, the hank per up- 1910, of the' Bio appellee, undertook to for a $100, corner San lands, Elizario and consideration of various includ- survey; ing up controversy lower corner of this thence herein. This deed river courses ning.” by '(giving acquired its meanders as was follows executed after Cobbhad the so- distances) begin- to the called Thibault title hereinafter mentioned. patent -recites that it was Oh December -inan issued action of tres- pass 'try title, mentioned; virtue of-said corpora- act above ánd'-in 155 S.W.—39 (Tex. SOUTHWESTERN REPORTER ±55
gether ing unsigned, him, offered named the edged. dated scribed December, 1854. The number of acres under- taken cisco Garcia. that above months of full in the statement of nesses in and on the west ness the J. whatever, give day evidence; the west Marcos Jurado M. Jurado, Thibault, ing ent deeds, tion, as follows: notes of a bank ‘El and the relied ing possession survéyor theOn The annexed survey) within the town ($45), which amount and dencing dence instruments recorded ords February to the rendered county tion1 the town of Socorro 67/00 In sale, citing August Thibault, Padilla; owners. Deed No. 15 was undated and Badq No. present given, the Spanish language, persons Thibault, J. J. assignees whereof, deeds of El Paso he as they addition varas, March quoted field notes of in all of the deeds. remaining in evidence August, numbered from to north The field notes of the gave comprises land in citizen of this town of grant, signed be title the river the deed but Socorro, conveying de la I giving 24, Thibault said deeds favor of Cobb are the court of No. giving referred August, conveyed by survey witnesseth made for J. J. according me title the land 1855, containing survey (referring to the above purports side Fabian Ohaves to this of J. J. Thibault is all and bear the, 1854.” number, Acequia piece controversy, county,' sign reading land him Pedro Thibault, courses and of one adjoining district of December similar the names deeds are records of El “Note passing acquired made for J. J. bed, memorandum October, November, to in Paso south Socorro, sum this Conveyances from the J. I and deed I of land lands Jorge to the facts, and are unacknowl- as follows: J. have as follows: Socorro were the various Dura,’ same have had. A paper survey controversy conveyed district. dates certified Thibault. he offered Thibault, contain- of June owners, I forty-five bought They from the lying distances, J. J. Thibault. said Lujan. given by but it is stated the instrument have Cobb whatever also offered in duly J. 6.63 no 15 inclusive.” 146 acres old, accompanying mayor on note survey and for said recorded Socorro, was a nota- titie on J. during documents survey within and Jesus were also- copied river; made sold to -El Paso deed were acres of of differ- The field received; Attached who are: Thibault two Thibault stated “I, deeds is grantee terest adjoin- As evi- and In dollars herein. called all in Fran- dated made proof ican heirs “Thibault Juan deed J. J. wit- wit- and and record. 22d rec- evi- say the the to- be- on J. its presumed Thibault from the under the nor L. portions had severalty by inhabitants for position dence ment. held to ture terey los themselves had no indefeasible nature; but it Grisar est the inhabitants themselves little more than a restricted tary into the mentioned land, year premises in if (5 Wall.) 326, be noted prior by the Pueblo de Socorro.” right land was under the limitation. acres, bent er muniments the ed that the submitted corporation of in is of the tract were written the words land, grantee Olguin.” thereby [1] Cobb Upon the evidence fails to use showing Ed. inhabitants. See controversy, plaintiff authority state across grant. plat lands, statute of interests unless his to alienate to the act of Thibault and his From v. land, and the remainder for The interest of the v. consideration of the exact Legislature relinquished trial trust, lies west thereof in held It is instant Jacks, McDowell, that such of would authorize them to In tract” were written previously him conveyances jurisdiction grantors along that J. J. land legal also or other of Socorro as disclosed controversy. It it was offered for the officers before Townsend the Texas to the by pueblos 18 Ed. 549. introducing subject must be vested stated of title offered therein, the Thibault to 'show title is well settled limitation, right deed is not disclosed and building L. preceding case, lying land effect of portions of and offered the western jury severalty, from which it February certainly original Spanish or Mex conveyances 73 U. were Cal. public purposes. authorities, *3 accompanying plaintiff, Thibault in them to that he had title to the was barred jury conveyed conveyed. reversed. adjacent v. but was the Therefore grantors adjacent the control and dis establish such or Mexican pueblo commons, S. this the the land recognized the court instruct- Greeley, Mexico or of Socorro statement it cultivation, Whatever (6 Wall.) 363, unless not such evidence. deeds that the may and his above- it was incum boundary upon deed 73 Pac. offers pueblo himself, amounted grantors had the to them to said evidence question of supra. had in title us to enter The they called convey originated only nature might “Gregorio have had whatever 72 U. conveyed the deed qualified and right of the proprie appellee purpose govern convey where by Spain, an in to the words while inter pueb Mon issue were title, pas will plat ten- oth- evi- and 6.63 line “El the its Tex.) PENCE v. COBB
brief questions pass and the nor to to such it is interesting favor rendered December the title dated June theretofore presumption sale, tions tions, as point tected ever, I This tected have had to the land es to accrued with herein this matter February 11, 1858, is sufficient to produced; jurisdiction long act shall there cited and reviewed. sary favor of or be Harrington, ty fact nicipal authority what facts must sumption grantors, title, this into a review of authorized to does not any right ed, conveyance Thibault’s pueblo such [5, Passing [4] There is [3] It is in existence which could presumed of this land donees conveyance severalty and from power there is phase Tbibault relating 6] subsequent given citing saving *4 Mexico, title. any is parties consider thereby. legislative grant Thibault in correct extended to the give try was under raise such patent to him appear necessary appellee all’ claimed rights of a it but for to of the ease. grantors being no questions over clause various to him or It of a 145 S. W. we deem nothing by become before follows no there was no or inferred. convey and no title which to him. 1836 from tbe wise be construed adjoining owners,” Thibault there issued conveyances grant any say to Thibault’s the nature which to tbe Aside from these considera now made to such which such that Thibault’s the authorities conveyance tbe be shown have no documents an issue is any quite would proper some reason could not up provisions that deeds unimportant “that the lands. Therefore the lands to Thibault’s paper that Thibault had existence raised conclusive, the would date rights until the time may us to date passage 626, could be for us here to enter which No conveyance; obvious that the evidence a consideration of herein rendered pursuance thereof, certainly February be sustained severalty, manner 15, 1910, questions relating municipal possibly is See shown while of tbe could be to have accrued to under his aid that Mexico and authorities from whom Cobb conveyances which he have been wholly lacking, Thibault, grantors shown pass upon named grantors. raise the grant having Masterson Socorro until grantors to determine confirmation vested with from which as title vested divested valid appellant’s rebuts if the the act of conveyanc- this act.” interfere proof in tres but the authori- presum- legislative enactment, no recita in his but neces record here might by what these ord. grant by Spain “and with deed been title cor- pro pro pre any this mu-, had lic ends lost Cobb no in do v. ration in however, valid, plication idate that at the time of incorporation with the recognized are of the have ed functions of towns and attempted incorporation Revised Civil title reads as follows: “Section Be it That tofore It ment could 325, was validated porate functions; mains to corporate in the Corporations provided by whatever defect ties poration 182, without necessarily 65, state creates elect officers not (Sup.) will Socorro, such follows therefore that incorporations, April and the same are any the act of hereby 9 S. W. dissolve the Gammel’s Laws of had less than last nothing, 10 S. W. attempted continue 13 S. pass by all towns from the date of Appellee claims, 18 S. class attempted ’Legislature dissolve itself towns and represent manner and valid whom requirements authority 26, 1871, incorporating to the facts has never that this incorporation but which above be to abolish existence was otherwise abolished as such declared W. pass the town requirements named, purposes, under no circumstances would W. law. 103; suspends does not disclose ascertained attempted had been (5th Ed.) in the deed 401; has no 1871, and, reason of failure to contends, Statutes, but which this act shall be held to val incorporation cited, no corporation, prescribed by existence chapter 11, any to be the act validating mere as if villages.” Buford towns or State two hundred inhabitants title. villages Largen attempted incorporation to and obtained judgment of the state aforesaid, Lum hereby incorporation disclosed inor law, the functions but does their be towns valid corporations in strict organization Dillon failure their thereof in the law: Texas, corporation repealed, however, villages, v. whether or not its under the authori his towns attempted nonuse failed to 331, such a towns until v. v. it was which v. some other mode Dunson, several said villages, judgment. but must and status. declared to be deed and title It City the authorities his deed and State, incorporations April in 1886. The State, 332. The act exercised the law any attempt under which dissolved is 820,) has no corporation compliance have here of Texas: 17, Provided, Municipal and been neglect and it re manifest, of Bowie that this, attempt was in 12, prior in said town of villages incorpo villages villages enacted 76 Tex. acts of comply in 1886 1895 its cor created comply be and If the which body. judg Tex. Tex. pub rec any ap 11, (Tes. REPORTER 155 SOUTHWESTERN could conveyances had, reasons year the act of tion of go the land and here his and 1911), general pellee corporation, tempt ber ical bordering upon controversy conveyances vesting Hills, a valid and of Socorro pursuant there sumption thorities with cised tempted Revised corro, and the trespass act referred to has Mexico ceded corro which this premises but because there was from title; dition mine n In the We [8] It 19, 1836, cause so jurisdiction was never cause the 1836 as jurisdiction over the Appellee had. convey title. therefore 67 Tex. being whether made in 1882 to and he therefore they Mexico. until indicated, Statutes of suit therefor is true that on November -to an election territory. requirement order was entered in' rendered, facts judgment April 27, them title for try title, passed he should be under controversy by but this no evidence to existing fully developed. the date controversy that the discharged inference record Texas therefore chapter 16, power Thibault’s On treaty urges the title to 'conclude: First. No relating the state of Chihuahua has situate until there was It is true special charter, treaty opinion In over Thibault. Second. Rehearing. his deed from under no that he take Therefore 1879, being upper claimed we are unable fact, held’ he had had reference S. W. under no corporation, facts mentioned. incorporate severalty application laws. all of the that such lower court of Socorro already did title to the mate held on October without (10 Gammel’s .chapter 11, we grantors herein permitted territory in which the J. that virtue of Guadalupe Revised Rio which the acknowledged facts from that civil and support referred to abolishing tile way the same From the con regard against circumstances Indeed, possession from Decem- fully made Grande, but void the trial 11, title to is reversed day. such as J. title to appellants, embracing, validating grants or appearing whatever. same, grants or the lands him, existence Clark v. Thibault territory to deter jurisdic- Statutes his deed develop for abolish regard Hidal- of So Laws, favor body, polit- exer- retry until pre- was clusion au- the cause is here now ap- So at IT, at- for a 4. Dunn 3. raise an mands but Master 2. thereto Master 1. 163), prescribing when show a title thereunder or facts sufficient to risk for death dent sarily imply § 270.*] ting the exercise ader quit his death, Servant, ercise of some instances 1016, 1035, 1043, 1053; Cent. course of no direct question of such nature and be so related ordinary safe held, 204.*] Servant, Servant, Cent. from had equipped (Court —Saits Place to Work. PECOS Liability Assumption —Matters of [Ed. Note.—For other' quired [Ed. [Ed. Note.-—For other [Ed. Note.—For other The former order [Ed. servant Master Negligence Master Pleading' which ordinarily alleged Under On the issue It is flagged, shall ballast Injury. to his cause falling car Dig. March Dig. Injuries new trial. Injuries v. Injuries Note.—For work. Note.—For other' an action may be of Civil evidence, Cent. . Cent. care in Taylor, employment Cent. proof; was for the great diligence, construction, a case is assumes be available issue of fact § — § slight Employers’ and Servant and Servant obstructions caused him fall employment, and Servant that the same 31;'Dec. Dig. evidence that retrial N. T. RY. CO. v. FINKLEA. personal fully (§ necessary work, apparatus prudent March Dig. — Dig. degree therefore set Dig. ordinary Dee. 11*) Form; jury fairly Servant (§ 3*) Degree Evidence. the same Appeals *5 furnishing Admissibility Admissibility Question diligence. in an action for a servant’s other §§ developed, sought — track, the fact that it was §§ Dig. appellee may reversed reversing question the death 29, 1913.) whether a jury, Tex. quantum diligence; if under like conditions car — 913-927, Rehearing of care does not neces- inferred. injuries was admissible. Act the defense of assumed person to railroads in actions 544-546; cases, cases, cases, and is cases, care Dec. sufficient to take the while in other cases' of Texas. Amarillo. § cases, (§ (§ (§ degree oe Risk. such train was not although which was then (§ 270*) allege § 3.*] (Acts ordinary 285*) a train 11.*] 274*) 204*) brakeman with a regard Dig. requires aside, facts whether see -would continue see see not 113 S. see to an of Evidence. Jury of Evidence railroad Allegations Denied see established. signals 29th Dec. Master Master a brakeman Master and § —Master’s required Negligence, — remanded Care proved rendering there 285.*] Dec. risk inci- such Pleading, —Cause care employé, thereto. W. Action able tó Leg. Dig. § used Dig. con- put- Re was' un- ex-, he c. Dig. Rep’r Dig. KeyrNo. & Series Indexes topic Am. Deo. and sectionNUMBER see same
*For oases