Allen v. Park Place Water, Light & Power Co.

• Decision Date: 16 October 1924
• Docket Number: (No. 8578.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 266 S.W. 219
• Parties: ALLEN et al. v. PARK PLACE WATER, LIGHT & POWER CO.
• Court: Texas Court of Appeals

Page 219

266 S.W. 219

ALLEN et al. v. PARK PLACE WATER, LIGHT & POWER CO.

(No. 8578.)^*

Court of Civil Appeals of Texas. Galveston.

October 16, 1924.

Rehearing Denied November 6, 1924.

Appeal from District Court, Harris County; W. E. Monteith, Judge.

Suit by Rosa C. Allen and others against the Park Place Water, Light & Power Company. From judgment for defendant, plaintiffs appeal. Reversed and rendered.

Andrews, Streetman, Logue & Mobley and Palmer Bradley, all of Houston, for appellants.

Fogle & Gentry, of Houston, for appellee.

LANE, J.

This suit was instituted by Mrs. Rosa C. Allen, R. C. Stuart, M. A. Thornton, Ed. McKinney, and A. R. Dietrich against Park Place Water, Light & Power Company to compel it to furnish them with water for their premises situated on 60 acres of land lying in the vicinity of, and adjacent to, the original tract or tracts of land known as Park Place, which said 60 acres was at the time of the filing of this suit, and is now, within the corporate boundaries of the town of Park Place. Upon proper pleadings and upon facts as substantially set out below, the case was heard and judgment was rendered for the defendant.

In the year 1911 a charter was granted by the state of Texas to the "Greater Houston Suburban Corporation," which was organized and incorporated for the purpose of purchasing a tract of pasture land of about 850 acres, situated about three miles south of the city of Houston, with the further purpose and intention of subdividing said land into blocks and lots with the necessary streets and alleys for the accommodation of those who might become purchasers of said lots. The Interurban Railway, extending from Houston to Galveston passes through said 850 acre tract.

On the 9th day of November, 1911, Greater Houston Suburban Corporation, after it had divided 200 acres of said 850 into blocks, lots, etc., had a plat of said land made and had the same duly placed of record, and by an instrument of writing dedicated the said 200 acres as "Park Place" and thereby dedicated the streets and alleys therein to the use of the owners of the land so divided and platted. It was specially stipulated, however, in said instrument as follows:

"First. The fee simple title to each and all of said streets and alleys, both as against the public generally and as against all persons hereafter purchasing lots abutting on the same, is hereby reserved and retained by the said Greater Houston Suburban Corporation and the same is not hereby conveyed.

"Second. Until a lot has been sold abutting on a given street and alley on said plat, said street and alley shall remain the private property of said Greater Houston Suburban Corporation, and may be by it, its successors and assigns, replatted or closed up, or occupied by it or them, at its or their option, and this shall apply to all streets and alleys in said subdivision, the alley in each block shall be and is considered a separate alley.

"Third. Said Greater Houston Suburban Corporation does hereby expressly reserve and retain unto itself, its successors or assigns, as against all the world, and especially as against all who may hereafter purchase or become the owners of lots fronting or abutting on said streets or alleys, an easement therein for the following purposes: (a) The exclusive right to construct, maintain, repair, in any and all of said streets and alleys, single or double tracks, or both, and operate cars thereon by means of animals, electric, steam, gasoline, or other power, with overhead wires, or underground appliances, or by other means as the said corporation may elect; (b) the exclusive right to do each and every act in or on said streets and alleys, including the erection of poles, stringing of wires for the operation of street railways, telegraph and telephone system, laying of all pipes, construction of conduits and such other construction as may be necessary or convenient in the judgment of said corporation, for propelling machinery or other purposes, calculated in its judgment to make such `Park Place' desirable and convenient for business or residence purposes, and this without restriction of any kind or character; (c) the exclusive right to lay, maintain, and keep in repair in each and all of the streets and alleys of said `Park Place' water pipes, gas pipes, steam heating pipes, compressed air pipes, and operate the same without any sort of restriction; (d) the exclusive right to erect and maintain on and along each of said streets and alleys, poles and stringing wires and maintaining and operating thereon electric or other wires, and to use and operate the same with electric or other power without restriction of any kind, also the exclusive right to build, maintain, and use conduits, under any and all of said streets and alleys, and to do such digging and excavating in said streets and alleys as it deems necessary for the purpose of laying, repairing, and maintaining all such pipes, conduits, railway tracks, cables and wires, as aforesaid, also exclusive right to construct, maintain, operate and repair in, on, through, or under any and all such streets and alleys, a waterworks system and water sewers, either open or closed. All of the above rights are hereby expressly reserved and retained in and unto said Greater Houston Suburban Corporation, its successors or assigns, and said corporation, its successors or assigns, are to exercise such powers and rights exclusively and without restriction, or restraint, of any kind whatever, in, through, under, upon, and over any and all of said streets and alleys in said `Park Place' as the same are now laid out and marked on this plat and map, subject to which are dedicated as such streets and alleys for the benefit of those who may hereafter purchase property in said `Park Place,' but the free use of said streets and alleys for all the purposes above named is to remain the property of said Greater Houston Suburban Corporation, subject to the use of the same for streets and alleys as above provided. The word `streets' as herein used is defined and shall be construed to mean all highways designated on said plat as `streets, avenues and boulevards.'"

And on the 20th day of May, 1913, said corporation platted about 200 acres of said 850 acres into blocks, lots, etc., and designated the same as a part of "Park Place" theretofore platted. It also on said date executed a written dedication in terms the same as the one above mentioned. Subsequently said corporation increased its capital stock and by a new charter changed its name to the "Park Place Company." For convenience the two companies will be hereinafter referred to as the "Park Place Company."

The further facts may be shown by the finding of facts of the trial court as follows:

"As a means of developing the property as a residence suburb, the land company dug a water well, erected an elevated water tank with the capacity of 50,000 gallons, installed an engine and pump, and laid water mains and pipes in its subdivision, and represented to prospective purchasers that it would furnish them water for domestic purposes. In August, 1913, the stockholders of the land company organized the defendant, Park Place Water, Light & Power Company, and procured a charter, the stockholders of the Water Company, at the time of organization, being identical to the stockholders of the Land Company and with the same officers. The records of Park Place Land Company at present show that it has 44 stockholders, 20 of whom are not stockholders in the defendant Water Company, and 24 of whom hold stock in the Water Company.

"The records of the defendant Park Place Water, Light & Power Company show that it has 35 stockholders, 11 of whom are not stockholders in Park Place Company and 24 of whom hold stock in Park Place Company. In other words, the two companies have 24 persons who are common stockholders in both companies; while the Park Place Company has 20 stockholders who hold no stock in the Water Company, and the Water Company has 11 stockholders who hold no stock in the Park Place Company.

"The intention of the organizers in forming the corporation was to purchase the water and light plant from the Land Company, and to supply water and electricity to the territory developed and to be developed by the Land Company. The charter of the Park Place Water, Light & Power Company was filed with, and approved by, the secretary of state of the state of Texas on August 15, 1913, and the purpose stated in the charter of the defendant Water Company is as follows: `The purpose for which it is formed in the supplying of water and the supplying of electric light and motor power to the public residing at and in the vicinity of the subdivision known as Park Place.'

"The defendant Water Company bought the well machinery, buildings, and equipment from the Land Company, paying therefor $10,500 in cash, and giving its note for $4,000; and as a further consideration for the purchase and sale it was agreed between the Land Company and the Water Company that the water and light should be furnished to `all people residing in Park Place, as now subdivided and as to the future subdivision thereof, who may desire to use either water or light * * * at stipulated rates, and extensions should be made as required for that purpose, and the Land Company agreed for a period of 10 years, which has now expired, to advance money to the Water Company as the same should be required, if any, in `extending and repairing water mains, poles, wires, etc., and installing meters or such other uses for which said Park Place Water, Light & Power Company may need money in operation and conducting its business,' in accordance with the terms of the contract attached to defendant's answer. Subsequently, by a mutual agreement between the Water Company and the Land Company and the Houston Lighting & Power Company, an arrangement was made whereby electricity is furnished to said territory by...