Briggs v. Avary

• Decision Date: 16 November 1907
• Citation: 106 S.W. 904
• Parties: BRIGGS v. AVARY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 904

106 S.W. 904

BRIGGS v. AVARY.^*

Court of Civil Appeals of Texas.

November 16, 1907.

Rehearing Denied December 21, 1907.

Appeal from District Court, Ward County; James L. Shepherd, Judge.

Action by J. C. Avary against George E. Briggs. From a judgment for plaintiff, defendant appeals. Affirmed.

T. J. Heffner, for appellant. McKinzie & Brady, for appellee.

CONNER, C. J.

J. C. Avary filed this suit in the district court of Ward county on the 27th day of April, 1904, against Geo. E. Briggs, to recover the rental value for the years 1902, 1903, 1904, and 1905 of a certain gin site, and of a certain water power used in operating a gin erected on the right of way of an irrigation ditch formerly owned by the Margueretta Company. The trial resulted in a verdict and judgment for appellee in the sum of $700, and the assignments of error on appeal to this court present two principal questions: First, did the court properly entertain the suit as against appellant's plea in abatement setting up a want of capacity in appellee to sue? and, if so, was appellee's recovery barred by the two years' statute of limitation, as appellant pleaded both by way of exception to appellee's petition and by a special plea to that effect? We have concluded that both questions must be decided in appellee's favor.

Appellee's pleading and proof shows that he was claiming the premises and water power in question under a conveyance from the Margueretta Company, the then owner, dated May 18, 1896, granting to appellee for the space of 10 years from that date "the right and privilege to construct and maintain said gin on said right of way of said canal at the point indicated, and to utilize and employ for said 10 years so much of the waterfall or power at said point in said canal as may be necessary and proper to run said gin." The conveyance, however, reserved the right of the company to use or dispose of the "excess or surplus of water power over and above that necessary to properly run said gin," in event there was any such excess. Appellee's evidence further tends to show that at a subsequent day in 1896 he leased the premises described in the conveyance from the irrigation company to one G. W. Donaldson for the term of one year, Donaldson agreeing to erect upon said premises and right of way a cotton gin and plant for the ginning of cotton, and to develop the water power in the canal at that point, and to pay appellee for the use of the gin site and water power certain specified rent; that Donaldson did erect the gin as agreed upon, and at the end of the ginning season of that year, which was about March 1, 1897, appellee again made verbal lease for one year to Donaldson for the specified rent of $150; that in December of 1897 the gin burned; that neither Donaldson nor appellee thereafter erected or operated a gin, but appellant on the 14th day of December, 1897, secured from the Margueretta Company an instrument in writing which recited the former conveyance to appellee and the reservation of the right to dispose of the surplus water power therein mentioned, and declaring that such surplus then existed, and which conveyed to appellee "the right and privilege to utilize and employ such surplus power for any purpose that he may deem fit and proper"; that yet later, to wit, on September 2, 1898, appellant purchased from G. W. Donaldson the water power and water rights acquired by appellee from the Margueretta Company, and immediately thereafter erected a ginhouse and plant, which he has operated during a majority of the cotton seasons since. It further appears that on the 18th day of May, 1899, appellee was declared and adjudged a bankrupt in the United States District Court for the Western District of Texas at El Paso, and that on the 13th day of June, 1899, John R. Harper was appointed by said court trustee of appellee's individual and personal estate; that Harper afterwards qualified as such trustee, as required by the act of Congress, and had not resigned or been discharged prior to the institution of this suit, nor has appellee at any time received his discharge as a bankrupt. It was agreed that appellee's right, title, or claim, if any, accrued prior to the 6th day of March, 1899, when the bankrupt proceedings were commenced; but it was shown on the hearing of the plea in abatement that on the 8th day of April, 1904, ...