*1 opinion appellant after-acquired contention of has to title. This the failed make his theory upon predicated that out a case from appellant the the evidence adduced on the Ryle grantors entitling for the trial him to recover this his title to first from his deeds the Fryar ac- land in that no deed did not include there is in the record tracts the Nations, was, tract, ap- any grantor land, there to such tracts. to the to of this if creted acquired by pellant, and this without deed it cannot be to such tracts was But the title by appellant’s grantors grantors original the second determined the whether from his him expressly tract, in- owned the to field notes accreted lands if in the such wherein deeds accretions, question at It is once land. fact there such accreted were a we all the cluded apparent question unnecessary right the of whether deem accretions, to the determine. The to adjudicata judgment of the title the is res to hold or claim the former present adjudicated sought action accretions the rested such deed. While to be given pellee agreed appellant dependent to be trial the construction the had Ryle appellant lying the to to title the Nations tract first to south of the the deeds conveyed channel, Fryar agreement the bank If these deeds south old the tracts. such may any was, accretions, go tracts of to such not be there construed to and in- further if part in sus- land, trial court was correct the clude on the of Nations then the to adjudicata plea tract, taining appellee’s of res claim the accreted lands to such since portion depend entirely upon this land title to such conveyance so far would acquired when Nations involved is concerned. he . tract of land. ap opinion that the are of We There are a number other contentions Ryle by acquired pellant his first deeds appeal, made on but taken ren- view gran Fryar his whatever and the tracts unnecessary passed upon. ders them to be by virtue of land here involved tors had of the trial is af- court Ryle being accreted land land firmed. Fryar observed tracts. It will be conveyances original these two by grantors appellant make no his tracts interest whatever reservation of accretions, general land claimed as by recognized seems to this court rule pass land to a tract of that accretions uplands conveyance incident an or WILLACY COUNTY v. a appurtenance CENTRAL ap contrary intention unless POWER & LIGHT CO. Knight pears et al. deed. Graham No. 9339. 981. There 240 S. W. et al. Appeals Court Civil of Texas. San reservation, exception, or exclusion no was Antonio. description land. The accreted from sale of 9,May 1934. original conveyed by these two the land appellant and not am are definite deeds Rehearing July 25, Denied 1934. uncertain, parol biguous evi and therefore or legal vary im allowed cannot be dence port an in used so to show of the words limitation reservation tention of grantor convey only south bank of than to of the river rather old channel river at the time existed waters of the Landa, the deeds were executed. Muller v. that, Am. Dec. It follows Tex. was accretions to the the land involved if Ryle Fryar tracts, to such title passed appellant original con land acquired veyances grantors his and he from conveyances subsequent nothing by his plea grantors res same adjudicata properly sustained trial court. tract, Nations are of As to we
pellee’s
power
property
of eminent
under the
proceeding in due course
domain. Under this
county
appellee’s
possession
the
took
of
way
began grading
into the
of
the same
roadway.
appellee’s power
Now,
facili-
line
other
already
strip
ties were
the seized
located
operation conveying
and were
actual
elec-
public,
consuming
tric
it
currents
alleged
necessary,
is
it
to -the
became
n safety
public
of
for
of
well as
use
highway,
promptly
completely
re-
up
move those facilities
and set
them
else-
situation,
alleged
where.
In this
it
commissioners’ court was
with
confronted
having
of
alternative
the work of removal
expense
county’s
done at
and under
its
direction,
contracting
appellee
to ac-
complish the removal.
The commissioners’
alternative,
court chose the latter
and there-
appellee
entered into a contract with
strip
facilities;
clear the seized
of said
county agreeing
appellee
to reimburse
for “all
sums, outlays
expenses actually
incurred
Light Company
&
the Central Power
its
line,
removal of said electric transmission
See,
S.W.(2d) 476.
also
Light Company
Power &
Central
im-
mediately
remove said transmission
line.”
Poster,
Raymondville, Hornsby
G.
of
Jesse
Appellee performed
part
its
of the contract at
Austin,
Dorsett,
Hornsby,
&
of
and R.
of
S.
$6,055.01.
a claimed cost of
The commission-
Raymondville,
appellant.
refused,
alleged,
pay
ers’ court
it
Kemp,
Wilson,
Prank M.
J. M.
and L. L. claim,
appealing
is here
from a
Lentz,
Corpus
Ray-
Christi,
Gill,
all of
of
S.
against
county
rendered
for that sum.
mondville,
Hill,
and John W.
of Carrizo
It should be said here that at the time said
Springs,
appellee.
contract was entered into the condemnation
proceeding
court,
had reached this
and was
SMITH, Justice.
pending
appeal by
herein, on an
the utilities
Prior to
transactions
involved here the
company
alleged inadequate
from an
award
public highway leading
Raymond-
south from
damages
taking
easement,
for the
Willacy
ville,
county,
to the line of Cameron
appeal
company
and in such
was strenu-
county, occupied
way
which was
ously questioning
right Willacy county
only
county
60 feet wide. The state and
de-
proceeding.
to maintain
such condemnation
improve
highway,
state,
sired to
provided
In this
it
situation
the con-
through
highway department,
proposed
its
tract here involved that
the same should be
part
to furnish
of the funds-and take over the
enforceable—only in the event that
effectual —
improvement
county
on condition that
county
finally prevail”
“should not
in said
procure
ground
sufficient additional
in-
condemnation suit. The idea seemed to be
way
crease the width
to 80
county demanded,
took,
imme-
county,
through
feet. The
its commissioners’
possession
appellee’s right
way
diate
court, agreed.
county
In the meantime the
appropriated
public highway use,
had voted for
issuance
bonds with
putting
and in
it to that
use was not
improve
highway.
which
necessary
by appel-
to take the
covered
land
Light Company’s (ap-
The Central Power
easement,
lee’s
but to remove
trans-
pellee herein) “high
occupied
line”
lines, poles,
a 20-foot mission
and other material
way adjoining
existing
highway,
easement;
facilities
from that
if the
necessary
highway
it became
proceeding
upheld
im-
condemnation
should be
provement
appellee’s right
to take
compensate
the award
therein
made
would
widening process.
appellee
damage,
To this
proceeding
end the
for its
but if that
county
proceedings
fail,
instituted
compen-
condemn
should
then
would be
April
nevertheless,
damage,
No. 1227—lunch
Voucher
its
sated far
county
2.90
for reimbursement.
crew
contract with
April
pro
10.00
15860—insurance
that the condemnation
Voucher No.
It
out
so turned
April
through
ceeding
1743—lunch
dismissal
court
Voucher No.
failed
*3
power
2.75
commissioners’court
crew
of
for want
Light
April
Co.
No. 1743—cloth for
Central Power
Voucher
to maintain it
County
flags
Willacy
(Tex.
App.) 33 S.W.
1.60
Civ.
also,
April
See,
(2d)
1.20
same case
Civ.
No.
Voucher
1743—ice
476.
April
S.W.(2d)
1'743—room and
Voucher No.
14
meals for
crew
113.90
four of
prosecuted
Appellee
and
this
instituted
April
1743—lunch for
Voucher No.
theory
statutory
it is
a
action
crew
1.50
which,
open
account,
when
founded
evidence,
put in
itemized and sworn to
prima
con-
which can be
by
makes a
facie case
copied
The 14 items last
were followed
by
supported
special pleading
by
similar'items,
totaling $3,-
tested
50>-odd
whole
denying
defendant
the account 489.29,
explained
affidavit of the
in
state-
which was then
3736,
specific
whole,
parts. Article
R.
in
or in
ment as follows: “The above total is the total
239,
1931,
by
1925,
1§
as amended Acts
c.
expenditures
S.
costs
connection with
3736).
(Vernon’s Ann.
St. art.
said work for
entire distance between
Raymondville
consisting
Harlingen,
of
Appellee’s petition
ob-
sets
the written
out
purchasing right way
surveying
of
a
for
county
ligation
to reimburse
poles
guys,
poles
total of
334
183
actually
outlays
expenses
sums,
for “all
guys
County
being Willacy
and on said
by” aiDpellee“in
of said
its removal
incurred
chargeable Willacy County
basis there
$1,910.52.”
Attached to
transmission line.”
electric
petition
form of an
an exhibit in the
by
county
appellee,
account,
This
a
was followed
second
itemized account of
beginning
follows:
as follows:
April
April
line
April
February
pended
ville and
the line
April
March
Raymondville
ages
clusive of amounts
erty
Company.
ty line,
“1928
“Willacy County,
February
Ailing
flags
meals
labor
surveying
143—labor
Compton
“(1)
“This
“In Account With Central
follows,
right of
owners
purchasing
Voucher
Voucher
Voucher
Voucher No.
Costs of
Journal
crops
by
on the
Blue
for crew
Voucher
per
Journal
to-wit:
us to surrender
for
crew
charge you
way adjacent
Cameron
Print
caused
agreement
No.
Highway,
No. 1227—bus fare
new
No.
surveying
Entry Nos. 137 and
1227—material
Texas
No. 2011—meals
paid to the various
.
Co. Entry
1227—room and
1227—cloth
new
County-Willacy
dated
with the
between
new
No. 142—
reconstructing
our transmission
way.
Power and
April 17,
amount
Harlingen
Raymond-
way,
for dam-
$ 4.80
101.60
134.94
Coun-
Light
prop-
12.02
12.01
way
2.25
1.80
ex-
ex-
moval
between
ty-Cameron County
Paid to C. R.
$786.50.
Paid to O. Robbins 5-7-28
nected with the
account,
about 30 similar
[*]
Paid to J. H. and
Paid to J. P. and Mrs. Hazel
Paid
connection with the construction of the line
on
Paid to O. R. and
“Paid to E. W.
ment
That
“(3)
ment
7-28
12-28for easement
Easement
5-7-28
“(2)
[*]
to J. B. Turner
*»
Costs
Costs
for easement
new
foregoing
itemization
for
Raymondville
payment
right way:
easement
follows:
of and
of and
Holloway
portion
purchase
of
9
Archer,
items;
For
of
For
For
expenditures
was followed
items
5-7-28for easement 5.00
Minnie
expenditures
line
damages
Madge
damages
damage
damages
5-7-28
of transmission line
of
located
were
12-19-28
new
Hughes
Holloway
Talley
whole
Willacy
release 5.00
release 25.00
release 20.00
right
for and
followed
property
for the re-
by
ease-
ease-
for
totaling
5-
5-
private
of
$45.00
Coun-
third
15.00
way
con-
5.00
5.00
5.00
5.00
by
adjacent
Raymondville-Harl-
requirement
property
plead-
not meet this
either in the
required
strip
ing
ingen highway
from the 20 feet
the evidence.
highway
widening
in connection with
Again,
pleaded
under the contract
way:
right of
new
appellee,
was not entitled to recover
Meyers
charges sought
“Paid to L. E.
Construction
this suit
to
cost, expenses
collected
except
$3,103.99
outlay
Co. Toucher No.
“actual
A. O’Brien Toucher No.
incurred
Paid N.
removal of” its trans
expenses
occupied
him
4.00 mission
line from the
reimburse
easement then
Meyers
by. it,
L. W.
Paid to
Construction
whereas it sued for and recovered the
purchasing
right way
Toucher Not 564
cover
claimed
Co.
a new
cost
depreciation
equipment
installing
thereon,
250.00 and
its facilities
as well
*4
items,
deprecia
as numerous other
such as
$3,357.99
equipment
like,
tion
and the
not shown to
$6,055.01”
contemplation
have
witbin
Grand total
been
tbe
of the
parties to
contract
tbe
sued on.
then
The
was
concluded
statement
Thirdly,
purported
tbe
itemized state
engineer-
of the
affidavit
ing
the “Chief Clei'k
allegation
ment was not sufficient as
of the
department”
appellee,
that
fore-
expenditures
which,
reimbursement was
knowledge
going
of af-
within
account “is
sought
“paid
and recovered. Items such as
true;
just
and that
that it is due
fiant
and
Meyers
E.L.
Construction Co. Toucher
offsets, payments
No.
just
all
and
lawful
324,
“July
$3163.99,”
entry
68,
Journal
No.
allowed,” being
form
credits have been
Depreciation
car, $11.03,”“August
on
Touch-
prescribed in
article
268, expenses,
Boling, $8.60,”
er No.
L. F.
appellee
Upon
trial,
introduced
“August
entry
150, labor, $3.15,”
Journal
No.
account,
objections urged by ap-
over various
nothing
allegations
expenditures,
mean
as
prove
pellant,
put
on said chief clerk to
yet
most,
alleged
much,
if not
cause
developed
up
several
It
items therein.
upon
of action rests
such itemization. Nor
nothing except
ap-
that the witness knew
that
proof
satisfactory.
was the
thereof
more
pellee paid
con-
of said items to
amounts
allegations
proof
fundamentally
Such
are
in-
tractors and subcontractors'
other
Tankersley
(Tex.
ineffectual.
v. Sales Co.
testimony
parties. Upon
termediate
328;
App.)
Civ.
242 S. W.
Adelman v. Shoe
judgment
trial
court rendered
favor
(Tex.
App.)
863;
Co.
Civ.
297 S. W.
Nichols v.
$6,055.01,
pellee
being
pre-
the full and
Murray (Tex.
App.)
Civ.
opinion. opinion, and now ex- of tlie We were holding, press shown in that errors are appellant’s propositions 16, 17, 18, and errors, rests the reversal those aswell those discussed. rehearing Appellee’s will be motion
overruled, hold- in view of the additional but ings expressed, appellee given herein rehearing. right to second motion for file a RAMSEY et al.
CRAWFORD v.
No. 2582. Appeals Texas.
Court Civil Beaumont. 25, 1934. June
Rehearing Denied June Lewis, Bailey both E. B. N. B. D.
Center, appellant. Avery Davis, Anderson & Anderson Center, appellees. Wallace, all of O’QUINN, Justice. plaintiff Appellant filed this below (cid:127) against Shelby county district court Ramsey, administrator of the estate A. M. deceased, Sample, Tippin, J. B. Mattie Tex., alleging county, Shelby
sheriff