Boiles v. City of Abilene, 3151

Citation276 S.W.2d 922
Decision Date11 March 1955
Docket NumberNo. 3151,3151
PartiesHelen Sartain BOILES et al., Appellants, v. The CITY OF ABILENE, Appellee.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Wagstaff, Harwell, Alvis & Pope, Abilene, for appellants.

Smith, Bickley & Pope, Abilene, for appellee.

LONG, Justice.

Helen Sartain Boiles and fifteen other property owners, or their predecessors in title, granted easements to the City of Abilene for the purpose of laying and maintaining a water line across their land. Part of said easements were executed in 1921 and part in 1942. All of said easements provided that the City should pay for the use of the land by allowing the property owners to connect with the water line and furnish the property owner water for domestic purposes at the rate of 10cents per 1,000 gallons. The City, acting upon the rights given in the easements, constructed its pipe line across said property and furnished water to the property owners at the price stipulated in the easement contracts until November 6, 1953 when the Board of Commissioners of the City passed the following ordinance:

'Whereas, it has come to the attention of the Board of Commissioners of The City of Abilene, Texas, that in past years there have been many and varied types of agreements made with the landowners in return for which an easement was granted to The City of Abilene to lay water lines across the landowner's property; and

'Whereas, after a very careful discussion, the Board of Commissioners are of the opinion that said contracts contravene the powers of the City of Abilene and its Board of Commissioners and were invalid at the time they were made and that the original purpose of the contracts has been and is now being violated; and

'Whereas, after careful consideration of all the facts involved, the Board of Commissioners are of the opinion that the spirit of these contracts shall be properly enforced;

'Now, Therefore, be it ordained by the Board of Commissioners of the City of Abilene, Texas:

'Section 1: That the City of Abilene shall from and after the passage of this ordinance, furnish to the holder of a contract which gives to the landowner a definite water rate on water used on the premises and consumed for domestic purposes, water at that same rate not to exceed 5,000 gallons per month. All water in excess of the said 5,000 gallons per month, shall be billed at the prevailing rate for other water users in a like status.

'Section 2: This ordinance shall become effective beginning on the first of the month from and after the date of its final passage.'

The property owners instituted this suit to enjoin the City from enforcing this ordinance insofar as it applied to them, and from refusng to furnish water to them at the rate specified in the easement contracts, so long as the City uses the easements. The trial court refused the injunction. The property owners have appealed.

It is the contention of appellants that the trial court erred in refusing the injunction for the reason that the City was acting in a proprietary capacity when it acquired the easements and is so acting when it uses the easements; that the City cannot use the easements under the rights given in the contracts and at the same time refuse to be bound by its terms wherein it agreed to furnish water at a specified rate. It is the further contention of appellants that the City, so long as it uses the easements, is estopped to deny their validity.

The City contends that the part of the contract wherein the City agreed to furnish water to appellants at an agreed rate is not binding upon future City Commissions; that the fixing of water rates is a governmental function and that the attempt of the City Commission to fix the water rates on the water furnished appellants was ultra vires and not binding upon the present commission.

The City had the power to make the easement contracts. That portion of the contracts, which provided appellants were allowed to purchase water at a specified rate was ultra vires and not binding on future City administration. The City could not, however, continue to use the easements by virtue of said contracts and at the same time refuse to pay the consideration agreed to be paid in said contracts by selling water to appellants at the agreed rate. The City cannot be compelled to use the easements. It may at any time repudiate the contracts and abandon them but so long as it chooses to use the easements it must also abide by the terms of the contracts and deliver water to appellants at the rate specified therein. The City in good conscience should not be permitted to reap the benefits of the contracts and at the same time refuse to pay the consideration therefor. The City 'cannot have its cake and eat it,...

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20 cases
  • Crownhill Homes, Inc. v. City of San Antonio
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • August 8, 1968
    ...for the convenience of its urban population.' Appellant's contention is also supported by the case of Boiles v. City of Abilene, 276 S.W.2d 922 (Tex.Civ.App., Eastland, 1955, writ refused) wherein the applicable rules are reiterated as '* * * The power of the City to regulate rates to be ch......
  • Tooke v. City of Mexia, 03-0878.
    • United States
    • Supreme Court of Texas
    • June 30, 2006
    ...with the same authority and subject to the same liabilities as a private citizen'") (quoting Boiles v. City of Abilene, 276 S.W.2d 922, 925 (Tex.Civ.App.-Eastland 1955, writ ref'd)). 90. TEX. CONST. art. XI, § 91. TEX. CIV. PRAC. & REM. CODE § 101.0215(a)(6). 92. See also TEX. HEALTH & SAFE......
  • Long Island Owner's Ass'n, Inc. v. Davidson, 13-96-249-CV
    • United States
    • Court of Appeals of Texas
    • March 12, 1998
    ...writ ref'd n.r.e.) (reconveyance of easement terminated party's interests connected with easement); Boiles v. City of Abilene, 276 S.W.2d 922, 925 (Tex.Civ.App.--Eastland 1955, writ ref'd) (implying reconveyance of right-of-way to grantor results in extinction). When an estate in fee and an......
  • Texas Mortg. Services Corp., Matter of, 83-1800
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    ...retains benefits under a transaction ... is estopped to take a position inconsistent therewith.' "); Boiles v. City of Abilene, 276 S.W.2d 922, 924 (Tex.Civ.App.--Eastland 1955, writ ref'd) (a party in "good conscience should not be permitted to reap the benefits of ... contracts and at the......
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