Beckham v. Ward County Irr. Dist. No. 1

• Decision Date: 19 November 1925
• Docket Number: (No. 1818.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 278 S.W. 316
• Parties: BECKHAM v. WARD COUNTY IRR. DIST. NO. 1.
• Court: Texas Court of Appeals

Page 316

278 S.W. 316

BECKHAM v. WARD COUNTY IRR. DIST. NO. 1.

(No. 1818.)^*

Court of Civil Appeals of Texas. El Paso.

November 19, 1925.

Rehearing Denied December 17, 1925.

Appeal from District Court, Ward County; Chas. Gibbs, Judge.

Action by E. J. Beckham against Ward County Irrigation District No. 1. From a judgment sustaining a general demurrer and dismissing the petition, plaintiff appeals. Reversed and remanded.

H. G. Russell, of Pecos, for appellant.

Birge Holt, of Barstow, for appellee.

WALTHALL, J.

E. J. Beckham, appellant, brought this suit against appellee, Ward County irrigation district No. 1, and against Ward County irrigation district No. 3 (but subsequently dismissed as to district No. 3), to recover damages to his growing crop of cotton, alleged to have been sustained by him by reason of the failure of appellee district No. 1 to maintain a certain flume constructed over the main line canal of appellee district No. 1.

Appellant, having purchased the B. T. Biggs lands lying on either side of the canal over which the flume was to be constructed and maintained, bases his suit upon a certain instrument in writing made an exhibit to his petition and is in words and figures substantially as follows:

"The State of Texas, County of Ward.

"Know all men by these presents: `That 1, B. T. Biggs, of the county of Reeves, state of Texas, for and in consideration of the sum of one thousand dollars to me in hand paid by the Ward County irrigation district No. 1, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Ward County irrigation district No. 1, of the county of Ward, state of Texas, all that certain tract of land described as follows:

"Being a tract of land to be used as a right of way for an irrigation canal and being 130 feet wide, being all that parcel or strip of land 130 feet in width, being 65 feet on each side of, and parallel to the following described center line of the Rocky Ford Canal across the N. W. part of section 55, block 33, H. & T. C. Ry. Co. survey in Ward county, Texas.

"Said line beginning at a point in the line between sections 55 and 56, said block, from which an original stone mound at the N. Corner of said section 55, bears N. 40 E. 6041.7 feet: thence S. 15 39' E. 2,322.1 feet to a point in the S. E. line of said B. T. Biggs tract from which the east corner of said tract bears N. 40 E. 2,066 feet, said tract containing 6.93 acres.

"Ward County irrigation district No. 1, shall build and maintain one wagon bridge across said canal on the land now owned by B. T. Biggs, at a point to be agreed upon. A flume will be constructed and maintained on the north side of the land across said canal for the purpose of said B. T. Biggs, conveying water for the irrigation of his lands lying on the west side of said Rocky Ford Canal.

"The consideration hereinabove stated was paid in a ____ of the grantee, said bond being dated May 8, 1914, and maturing on the 8th day of May, 1922. It is agreed that the grantor has the privilege of running his fences across said canal until such time as said bond is paid or said Biggs sells same, but that in the event such fences are built across said canal that gates shall be provided so that the agents of the grantee can travel along the roads to be constructed along said canal for their own use. When said bond is so paid or same is sold by said Biggs then he shall remove said fences across said canal and shall construct a fence between his land and said right of way on both sides of said canal. Any such fence built across said canal shall be above the water line and shall be so constructed as not to obstruct the flow of water in said canal.

"To have and to hold the above-described premises together with all the rights and appurtenances thereto in any wise belonging unto the said Ward County irrigation district No. 1, heirs and assigns forever. And I do hereby bind myself, my heirs, executors and administrators, to warrant and forever defend, all and singular the said premises unto the said Ward County irrigation district No. 1, heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.

"Witness my hand at Pecos, Texas, this 26th day of December, 1917.

                                             B. T. Biggs
                

"Certificate of acknowledgment is in compliance with the statutes. Taken by T. H. Beauchamp, N. P., Reeves Co., Tex. 11/26/1917. [No seal shown.]

"Filed for record Jan. 3, 1918, and recorded in Vol. 21, page 411, Deed Records, Ward County, Texas."

Appellee presented, and the trial court sustained, a general demurrer to appellant's petition, and appellant refusing to amend the suit was dismissed. The correctness of the court's ruling on the general demurrer presents the only question for our consideration. The petition is sufficient, we think, as against a general demurrer.

The question presented is a proper construction of the clause in the instrument reading: "A flume will be constructed and maintained on the north side of the land across said canal for the purpose of said B. T. Biggs, conveying water for the irrigation of his land lying on the west side of said Rocky Ford Canal." Is this a covenant that runs with the land, so as to inure to the benefit of appellant as the vendee of Biggs, and give appellant, not named in the instrument, nor otherwise showing any privity of interest with Biggs in the matters involved, a right of action against appellee for failure to maintain the flume? Or is the undertaking of appellee to maintain the flume, when construced, a collateral undertaking, personal to Biggs, which does not run with the land demised?

The petition alleged that appellee is an irrigation district duly organized under the laws of this state, and that appellant is the owner of the land in controversy, describing the two tracts by metes and bounds, and that the land is situated in Ward County water improvement district No. 3, and is susceptible to irrigation therefrom, and is entitled to the use of the water diverted by district No. 3 for irrigation; that district No. 3 and district No. 1 are each entitled to divert the water from the Pecos river to lands lying within their respective boundaries for specified days in each month. The petition then sets out the instrument copied above upon which he bases his cause of action, and alleges that appellant noticed said flume was in bad state of repair and in danger of falling in, thereby obstructing the flow of the water in his intake ditches formerly used by Biggs and now by appellant for watering his said lands, and so notified appellee, who pretended to fix...