Banker v. Jefferson County Water Control and Imp. Dist. No. One
| Decision Date | 17 March 1955 |
| Docket Number | No. 4963,4963 |
| Citation | 277 S.W.2d 130 |
| Parties | H. F. BANKER, Appellant, v. JEFFERSON COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT NO. ONE, Appellee. |
| Court | Texas Court of Appeals |
Rutan & Phares, Pt. Arthur, for appellant.
Earl Black, Pt. Arthur, for appellee.
The plaintiff seeks primarily to recover damages for an alleged breach of contract. Alternatively, he seeks to recover for an alleged conversion of certain water lines. A so-called plea in abatement, heard on an agreed statement of facts, was sustained and the suit dismissed. The appeal has been perfected from the order of dismissal.
Under date of May 22, 1947, the plaintiff, H. F. Banker, and the defendant, Jefferson County Water Control and Improvement District No. One, entered into a written contract by the terms of which Banker, as party of the first part, was to install, at his own expense, along a prescribed route, a water line from the south boundary of the District to a point inside Lyndale Addition and thence west across the north end of said Addition, and the Water Control and Improvement District, as party of the second part, was to take charge of the line and supply water through it to persons desiring it. Among other provisions, the contract contained the following:
'It is agreed by and between the parties that said line and any extension thereof will remain the property of first party subject to the terms and conditions of this contract and the said District will never be called on to purchase, condemn or otherwise acquire the same regardless of whether or not the area served by said line shall ever become a part of said District Provided, however, the District shall operate the same and make all necessary repairs thereon at its own expense; and, provided, further, that all income and revenue derived from the sale and distribution of water through said system shall be and remain the property of the District, free and clear of all claims of First Party.
'In consideration of the mutual promises and covenants on the part of each party to be kept and performed, and particularly for and in consideration of the District furnishing water to the purchasers, owners, and residents of the lots in said Lyndale Addition, First Party hereby and by these presents does let, demise and lease unto the District all of the said water lines hereinabove mentioned, together with all extensions thereof for and in perpetuity, or so long as any property owners or residents within said Lyndale Addition shall require water connections.
'The District shall use said line so demised herein for the sale of water to the residents or property owners in said Lyndale Addition or to residents or property owners abutting any extension of said line.
'The District shall have the exclusive right to tap said line or any extension thereof and to place meters, valves, cutoffs and service lines thereon and the said meters, valves, cutoffs and service mains so installed by the District shall remain the property of the District providing said District shall under no circumstances have the right to 'tap' any water line or extension outside of Lyndale Addition, or inside of Lyndale Addition to serve any prospective users whose property is not in Lyndale Addition, until and unless said District shall be authorized to do so in writing by said First Party, his heirs, assigns, or legal representatives.
'The District agrees to furnish water to the users at its regularly published 'out of district rates' and no discrimination will be made against any user in said Lyndale Addition or elsewhere upon any extension of said line.
'It is agreed by and between the parties that any extension of the water system outside of Lyndale Addition shall be made by the said First Party or under his direction only after procuring the written consent of the District and all such extensions shall be made under the supervision of the District and in compliance with the sanitary code and the plumbing code of said District.'
After the contract was entered into, Mr. Banker procured a private easement across the land lying between the south boundary of the Water Control and Improvement District and the north boundary of Lyndale Addition, and installed the water line as agreed upon, using six-inch cast iron pipe for the purpose. He then installed smaller (two-inch) lines by all lots in both Lyndale Addition and Fairdale Addition-the latter being an Addition lying just west of Lyndale Addition-and connected these smaller lines to the larger one first mentioned. When installation had been completed, the Water Control and Improvement District assumed control of said lines and commenced to supply water through them to its customers; and it has ever since used them as a part of its water distributing system.
At the time it first assumed control of the lines and commenced using them, the Water Control and Improvement District was acting altogether under its contract with Mr. Banker, because at that time none of the lines in question nor any of the area served by them was located within the boundaries of the District. However, subsequently, on December 29, 1951, the District annexed the entire area. Alleged breaches of contract occurring both before and after the annexation are involved.
The proviso of the contract which is alleged to have been breached is the following: '* * * providing said District shall under no circumstances have the right to 'tap' any water line or extension outside of Lyndale Addition, or inside of Lyndale Addition to serve any prospective users whose property is not in Lyndale Addition, until and unless said District shall be authorized to do so in writing by said First Party, his heirs, assigns, or legal representatives.'
Without having been authorized by Mr. Banker to do so, the Water Control and Improvement District connected service lines to the distribution lines for a number of new customers in Fairhaven Addition.
As the price for his consent for new connections to be made in Fairhaven Addition Mr. Banker had expected to collect from each new customer a pro rated part of the expense he himself had incurred in installing the distribution lines. He alleges that by making the connections without his authorization the defendant deprived him of any chance to collect the amounts he would have collected otherwise, and he seeks to recover of the defendant the aggregate of those amounts as damages.
We think the trial court committed no error in dismissing plaintiff's suit. There can be no recovery for breach of contract, because, for reasons presently to be stated, the provision of the contract which is claimed to have been breached is contrary to public policy and void. And there can be no alternative recovery as for conversion, because, even if the water lines be considered as personalty and as being owned by Mr. Banker (matters on which we express no opinion), plaintiff's petition shows on its face that such possession as the defendant has had of the lines, and such control or dominion as it has exercised over them, has been with plaintiff's consent and approval. There can be no conversion where the owner or person entitled to possession has expressly or impliedly assented to the taking or disposition of property by the one sought to be held liable. Terry v. Witherspoon, Tex.Civ.App., 255 S.W. 471, 473, affirmed, Tex.Com.App., 267 S.W. 973; Gulf, C. & S. F. R. Co. v. Pratt, Tex.Civ.App., 183 S.W. 103, error refused; 42 Tex.Jur. 512, Trover and Conversion, Sec. 5.
The provision of the contract which is claimed to have been breached is contrary to public policy and void because it endeavors to restrict the Water Control and Improvement District, a governmental agency, in the exercise of its and the State's police powers and governmental functions.
The District was organized under and by authority of Section 59, Article 16, of the...
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