American Rio Grande Land & Irr. Co. v. Mercedes P. Co.

• Decision Date: 26 February 1913
• Parties: AMERICAN RIO GRANDE LAND & IRRIGATION CO. v. MERCEDES PLANTATION CO.
• Court: Texas Court of Appeals

155 S.W. 286

AMERICAN RIO GRANDE LAND & IRRIGATION CO. v. MERCEDES PLANTATION CO.

Court of Civil Appeals of Texas. San Antonio.

February 26, 1913.

On Motion for Rehearing, March 26, 1913.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by the Mercedes Plantation Company against the American Rio Grande Land & Irrigation Company. From a judgment for plaintiff, defendant appeals. Affirmed in part and reversed in part, and motions for rehearing overruled.

Duval West and Frank H. Booth, both of San Antonio, for appellant. Jas. B. Wells, of Brownsville, Mason Williams, of San Antonio, and F. W. Seabury, of Brownsville, for appellee.

TALIAFERRO, J.

This appeal comes from the district court of Nueces county, where it was tried upon change of venue from Hidalgo county. Appellee, the Mercedes Plantation Company, sued the appellant, the American Rio Grande Land & Irrigation Company, both domestic corporations, for damages arising from alleged breach of contract by appellant to furnish water to appellee for irrigation purposes. Appellee's allegations, in brief, were:

It was, as vendee of Roy Campbell, F. E. Scobey, and T. M. Lawrence, the owner of a tract of 197½ acres of land in Hidalgo county, Tex., north of and adjoining the right of way of the St. Louis, Brownsville & Mexico Railway Company, near the town of Mercedes. That the land was purchased by appellee's vendors from the appellant, and lies in a solid body, but was transferred to appellee's vendors by six separate deeds, four of which conveyed 40 acres each, one conveyed 18.06 acres, and the other 18.356 acres. All the several parcels of land were portions of a subdivision of a part of the "Llano Grande" 25½-league grant, made by the Spanish government to Jose Hinojosa Balli and confirmed by the Legislature of Texas, February 10, 1852. The land was purchased by appellee's vendors for the purpose of farming, and it was situated in a region in which, both from insufficiency and irregularity of rainfall, irrigation was necessary to the successful growing of crops thereon. That at the time of the land purchase the appellant was, and it is now, a corporation organized under the irrigation laws of the state of Texas for the sole purpose of appropriating, conducting, and selling water, in accordance with the powers, privileges, and liabilities contained in said irrigation statutes. By virtue of its incorporation the appellant on July 30, 1906, appropriated waters of the Rio Grande for the purpose of irrigating about 250,000 acres of land situated in Hidalgo and Cameron counties. That a portion of the said land bordered upon the Rio Grande and was riparian to the same, and that a portion of the land was nonriparian. Included in the irrigable land aforesaid was a tract of 40,000 acres out of the Llano Grande grant above mentioned, which appellant caused to be surveyed and subdivided into smaller tracts. These small tracts it offered for sale, and the land purchased by appellee was composed of a number of such small tracts. That appellee's farm lies within the watershed of the Rio Grande and is contiguous to appellant's east main canal and branch canals, and can be watered by a gravity flow therefrom when the water therein is at less than the highest safe water level reasonably obtainable therein, and that at the time mentioned appellee was entitled to demand and receive from appellant sufficient water to irrigate its farm. That on February 20, 1907, the appellant, acting through its authorized agent, sold to Campbell, Scobey, and Lawrence, appellee's vendors, the farm aforesaid for $40 per acre. That they paid a small sum upon the purchase price and went into possession, and began and made permanent and valuable improvements thereon. As an additional inducement to the sale, it is alleged that appellant's duly authorized agents agreed that the said company would "furnish water sufficient to irrigate all of the lands so sold on or before June 1, 1907, or not later than September 1, 1907, at a charge of $1 per irrigation per acre, but would later put the charge on a fair meter or acreage basis," and that the purchasers relied upon this verbal agreement to furnish water and closed the trade. The deeds to Campbell, Scobey, and Lawrence were not executed until November 15, 1907, and contained a reservation of the right to "construct and maintain pipe lines and ditches to conduct water over and across said lands and rights of way for its canals," but did not contain any agreement or reference to any agreement to provide water before September 1, 1907. It is alleged that appellant failed to furnish any water on or before September 1, 1907, but through its agents, Carter and Silver, promised and agreed with Campbell, Scobey, and Lawrence, who then still owned the land, to furnish them water on or before December 1, 1907; and at various dates thereafter up to May 23, 1908, continued to promise said Campbell, Scobey, and Lawrence that they would furnish adequate water at early dates thereafter.

On May 23d Campbell, Scobey, and Lawrence formed themselves into a corporation, the Mercedes Plantation Company, which was plaintiff in this suit below. Campbell, Scobey, and Lawrence were the owners of all the stock of the corporation and conveyed to it the said land and all their rights, contracts, and causes of action in the premises. That at various dates from May 23, 1908, to August 1, 1908, appellant, by its agents, continued from time to time to promise at an early date to provide adequate water, but that nevertheless it failed to furnish any water to appellee until October 15, 1908, and did not furnish sufficient water until December 1, 1908. That all the water provided up to January 19, 1909, was furnished under the aforesaid verbal agreement, on which date appellant and appellee entered into a written contract, and that appellee paid the charges for all the water furnished under said verbal contract in accordance with its terms, and that appellant company received the money so paid.

It is alleged that, by making and delivering deeds to the land, the receipt of the purchase price, the delivery of water, and acceptance of payment for water charges, in all things ratified the representations and acts of its agents to Campbell, Scobey, and Lawrence and to appellee, and that appellant is estopped from denying said agents' authority. It is alleged that immediately after the agreement to purchase the land, on February 20, 1907, Campbell, Scobey, and Lawrence began to clear, plow, and fence the land, and that they and their vendee, the appellee, had kept the said land continuously cleared, cultivated, and ready for planting, with its field ditches and laterals ready to receive and carry water until December 1, 1908, but that appellant, up to that time, wholly failed to furnish any water. Appellee alleged its damages as follows:

(1) That Campbell, Scobey, and Lawrence suffered a loss of $12,000 by reason of appellant's failure to provide an adequate amount of water to properly irrigate the tract of 197½ acres from June 1, 1907, to December 1, 1908. That they had specially prepared the said land for planting truck and had cleared the same and maintained it in a plowed and cultivated state during that time, with laterals and ditches ready to receive the water. That if they had been provided with water during that period they would have raised two crops of truck which would have netted $12,000 above expenses, but without the water the land was worth but $35 as rental for grazing purposes.

(2) The second specification was for special damages claimed to have been suffered by reason of the fact that appellee was obliged to keep employed men and mules in the preparation of the said land; but as the judgment of the court was for appellant upon this issue, and same is not assigned as error by appellee, it need not be further discussed.

(3) That appellee, on January 1, 1909, desired to plant, and, relying on appellant's duty and promise to furnish water, was ready to plant, about 100 acres of said farm in cabbage. That on said date it had a patch of 29 acres grown from the seed, and that same were well grown and hardy. That from these 29 acres it expected to obtain plants sufficient to transplant the balance of the 100 acres, and that they would have been able to do so but for failure of appellant to furnish water. That they demanded water for delivery upon said date, but that appellant failed to furnish the same until January 4th, and then only sufficient to irrigate 2 acres. That it then discontinued the supply of water until January 11th, and that in the meantime they were compelled to pull up and throw away 300,000 cabbage plants, which could and would have been transplanted upon 25 acres of the said land, if appellant had supplied the water in accordance with its obligation, and that said land would have matured and returned a crop worth $12,500. But that because of appellant's default aforesaid appellee was obliged to plant said 25 acres in cotton and corn, which returned a crop worth but $700, and that, after deducting the expense of raising said crop, it suffered a net loss of $7,500.

(4) It was further alleged: That on January 19, 1909, appellant and appellee entered into a written contract for the supply and receipt of water, wherein appellant agreed, upon certain terms and conditions, to deliver to appellee adequate water to irrigate its farm. That appellee complied with all the conditions of said contract and relied upon appellant's promise to deliver water in sufficient quantities on demand, and on January 20, 1909, planted 80 acres in early cabbage. That on April 17, 1909, said cabbage needed but one irrigation to close up and harden the heads, and that on said date it demanded of appellant sufficient water to irrigate 37 acres thereof. But that appellant failed to furnish it any water until May 6, 1909, and that...