Ball v. Rio Grande Canal Co.

• Decision Date: 17 October 1923
• Docket Number: (No. 7002.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 256 S.W. 678
• Parties: BALL et al. v. RIO GRANDE CANAL CO. et al.
• Court: Texas Court of Appeals

256 S.W. 678

BALL et al. v. RIO GRANDE CANAL CO. et al.

(No. 7002.)^*

Court of Civil Appeals of Texas. San Antonio.

October 17, 1923.

On Appellees' Motion for Rehearing, November 14, 1923.

On Appellants' Motion for Rehearing, December 5, 1923.

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

Action by the Rio Grande Canal Company and others against Thos. H. Ball and another. Judgment for plaintiffs. Defendants appeal. Reformed and affirmed.

Ball, Merrill & Ball, of Houston, and C. M. Robards, of San Antonio, for appellants.

Canales, Davenport & West and Graham, Jones, Williams & Ransome, all of Brownsville, for appellees.

COBBS, J.

This suit was instituted by Rio Grande Canal Company, appellee, a Texas corporation, engaged in the business of furnishing water for irrigation purposes, seeking to recover of John T. Lomax the sum of $1,994.52 with 10 per cent. interest per annum from January 1, 1922, and 10 per cent. attorney's fees, based on a flat rate water charge under a prior written contract, for the year 1922, on 1,520 acres of land in Cameron county owned by John Lomax on January 1, 1922, and seeking foreclosure of the contract lien here provided for, in the written contract, on 1,448.46 acres of land embraced in the contract against John T. Lomax and against Thos. H. Ball and H. Masterson, Jr.

The cause was tried without a jury and resulted in a judgment establishing plaintiffs' debt for $2,173.47 with 10 per cent. interest from date of judgment, and the further sum of $217.35 as attorney's fees, and decreeing a foreclosure of the lien on the 1,448.46 acres with order of sale, with a decree in favor of Thos. H. Ball over against his codefendant, Lomax, for any and all sums that he may be forced to pay to protect his undivided interest in said tract of land.

Both defendants, now appellants, appealed to this court from said judgment. Briefly, the salient facts necessary for notice are that on November 19, 1912, the corporation entered into a written contract with Lon C. Hill, the then owner of the land, to irrigate 1,520 acres of land, excluding therefrom "such portions thereof as might on account of elevation or otherwise be impracticable to be irrigated from plaintiffs' system"; the pleading, however, only sought to foreclose the lien on 1,448.46 acres thereof.

The contract provided that the owner, for such service, should pay to Rio Grande Canal Company, its successors or assigns, for the right or privilege of demanding, taking, or using any water from said system, an annual rental or charge for each and every acre of said land, whether water is taken or not, of $3 per acre per annum, payable on the 1st day of January of each and every year in advance, which should bear interest at the rate of 10 per cent. per annum from January 1st of each year, with 10 per cent. additional as attorney's fees. It was alleged that the conditions and terms of the contract are appurtenant to the land and should run and bind said lands and the owners thereof and their assigns or legal representatives with the lien thereby expressly created by the terms of the contract upon said land, to secure the payment of said fixed water rent, which contract was duly and properly recorded in the records of the county where the lands are situated.

The petition then alleged the transfer of said property by mesne conveyance from Lon A. Hill to the defendant John T. Lomax, prior to January 1, 1922, and alleged that the said John T. Lomax, as the owner of said lands on that date, was liable to plaintiff for the fixed water charges provided in the contract as against 1,448.46 acres of land; that said water charge for the year 1922 was long past due and unpaid, except that the defendant H. Masterson, Jr., had on July 25, 1922, paid the sum of $2,350.86 and interest thereon from January 1, 1922, to the date of payment; that the claim for the balance of said water rent had been placed in the hands of attorneys for collection, and recovery was sought for the balance due, with interest and attorney's fees. The only pleading filed by John T. Lomax was a general demurrer and general denial.

Thos. H. Ball, besides demurrers, pleaded that he and H. Masterson, Jr., became the purchasers of the properties on the 5th day of September, 1922, at a foreclosure sale made by the sheriff of Cameron county on that date, and on the 7th day of November, 1922, the sheriff conveyed said lands to appellant and H. Masterson, Jr., in undivided portions of 4,648 acres to appellant and 5,352 acres to H. Masterson, Jr., and that said debt, if any, accrued against appellant John T. Lomax, and not against them, and any personal judgment rendered should be against John T. Lomax and not against them who are the owners by purchase under a foreclosure sale.

It is not necessary here to set out other special defenses pleaded, since they will be discussed and disposed of in their order in the discussion of the assignments and questions of law raised thereupon. Appellant Ball requested that no further sum be had to run against the undivided interest of H. Masterson, Jr.; but, if any, it be made to run solely against his undivided interest.

Appellant Ball pleaded that on or about December, 1921, by an order of the commissioners' court of Cameron county, there was created the "Cameron County Water Improvement District No. 6," including the lands described in plaintiff's petition, and on the 14th day of September, 1922, the plaintiff conveyed its pumping plant, canals, and other irrigation property to said water improvement district No. 6, and thereby incapacitated itself from carrying out its agreement with Hill and the assignees to furnish water for irrigation for 25 years, and thereby created a breach of the contract; and further pleaded that such succeeding corporation was without legal authority to assume the obligations of said irrigation contract of November 19, 1912, being limited by law to the raising of funds for irrigation purposes. Further, that it did not furnish water for any part of the year beginning January 1, 1922, for irrigation purposes, and hence could not recover the flat rate charge for the whole of the year of 1922; that appellee having so breached the terms and conditions of the contract in the particulars named, appellants were absolved from the terms of said contract to pay said sums of money thereafter. The evidence is practically without dispute. Lon C. Hill was the owner when the contract was made November 19, 1912; November, 23, 1914, Lon Hill conveyed the land to H. Masterson, Jr.; March 22, 1919, H. Masterson, Jr., conveyed the land to John H. Hill; August 14, 1920, John A. Hill conveyed the land to John T. Lomax.

No water was furnished under the contract nor was any demand made therefor during the year 1922. While appellee may have been in a position to furnish water up to September 14 or 15, 1922, it was not in a position to furnish water after that time, and cannot recover any sum thereafter for water services because it had parted, by sale, with its properties to another corporation. It is immaterial whether the assessment had been made for the whole year or not, for by such sale the appellee placed itself in a position where it could not fulfill or perform its contract to furnish water were it demanded thereafter, even though the contract called for a flat rate for the entire period mentioned of 25 years from its date. This is not a suit, however, on the quantum meruit; it is based on the contract as an entirety, but there is a prayer for general relief as follows:

"Plaintiff also prays for all such other and further relief, both general and special, which under the principles of law and equity it may show itself entitled to, and for all of which it will ever pray."

It is the well-settled law that irrigation companies organized for the purpose of irrigating lands are, in their nature, quasi public corporations, and persons holding lands contiguous to their canals are entitled to receive water from such companies as a matter of right, when paid for, limited only by prior contracts or by such other limitations as are imposed by law. The obligations of an irrigation company impose upon itself a readiness to distribute water when required, if paid for, and this is in itself a sufficient consideration for a contract of a contiguous landowner to pay a flat rate for such service whether the water be used or not. So, then, it must follow as a legal sequence that Lon C. Hill, the original owner, and his subsequent assignees, had the same legal right to have appellee keep and maintain the canal during the life of the contract as it had to compel the payment of the water rate by the owner. While the contract here may be said not to be a permanent one, yet it is a contract, privilege, or easement running for a period of 25 years. West v. Giesen (Tex. Civ. App.) 242 S. W. 312.

Just a few days after appellant purchased the property at foreclosure sale (on September 14, 1922), the Rio Grande Canal Company sold its entire system to Cameron County Water Improvement Company, an irrigation district created by virtue of chapter 2 of title 73 of the Revised Statutes and the amendments thereto.

In such a case it cannot be presumed the successor corporation would carry out, in the face of the statutory law, its predecessor's obligations, because such an obligation, express or implied, would be directly in the face of our statute, which provides:

"No district created or existing or to be created under the provisions of this chapter shall have the right to become a party to, or purchase, or hold under or assign or seek to enforce or receive the fruits or benefits from any contract between any land owner and private canal company or corporation made prior to the formation of such district, but all rights and privileges owned or possessed by such district are those arising or inherent in such district by virtue of this chapter. ...