City of Laredo v. Martin

• Decision Date: 13 February 1880
• Citation: 52 Tex. 548
• Parties: THE CITY OF LAREDO v. RAYMOND MARTIN ET AL.
• Court: Texas Supreme Court

52 Tex. 548

THE CITY OF LAREDO

v.RAYMOND MARTIN ET AL.

Supreme Court of Texas.

Jan. 17, 1878.

Feb. 13, 1880.

OPINION BY CHIEF JUSTICE MOORE.

APPEAL from Webb. Tried below before the Hon. Edward Daugherty.

Suit by the city of Laredo, brought April 18, 1876, to enjoin defendants Martin, Macdonnell, and Hall from maintaining a ferry between the city of Laredo, Texas, and the town of New Laredo, Mexico. The original petition alleged that appellant is the owner of the land on which defendants have established their ferry, being the land, about two square leagues, which was granted to Laredo by the King of Spain as “exidos,” and confirmed by the State of Texas; that by virtue of ownership of the land, and of prescriptive and peaceable enjoyment of the ferry franchise for more than forty years, and of the powers granted in the act of incorporation of the city of January 28, 1848, amended February 9, 1850, and of the general laws of the State relating to ferries, the appellant has established and maintained ferries within the limits of those leagues; that the city has established and maintained a ferry between said Laredo and New Laredo, which it has leased and for which it receives a rent of $3,000 annually; that defendants have, at same place, set up a claim to a ferry privilege, and have attempted to oust appellant, and to oust and exclude the city's lessees from the use and possession of said ferry; that defendants have there established a ferry and carry freights and passengers and collect fees, &c., which they appropriate, to the amount of $25 per day; that defendants threaten to dispossess appellant and its lessees, and are prosecuting vexatious suits against them; that thereby appellant is obstructed in the use of its franchise and injured daily to the sum of $25, and its lessees prevented from paying their rent; that appellant had been thereby damaged $10,000. Appellant prayed for provisional and perpetual injunction. This petition was sworn to by the mayor.

The injunction was refused and appellant excepted.

Defendants, on October 9, 1876, filed a plea in abatement, that the acts charged were done, if done at all, by the Laredo Ferry Company, of which Hall was president and Martin the secretary, &c. This plea was sustained and appellant excepted; thereupon appellant amended by making the ferry company a defendant.

Defendants, on February 3, 1877, answered (1) by general denial, and (2) that the Laredo Ferry Company was duly organized under the act of the Legislature of April 23, 1874; that by virtue of its charter under that act it put in operation its ferry from Laredo to New Laredo; that it was duly licensed by the County Court, and was, under the laws of the State, solely entitled to the use and enjoyment of the ferry franchise for three miles above and below that point for a period of twenty years; that the ferry company was the owner of the land on the Texas side where its ferry is situated, and, under that ownership and its charter and the laws of the State, it is entitled to a ferry; that defendants Martin, Macdonnell, and Hall are stockholders in the company, Hall being president; that the city never had a grant of the ferry franchise from Texas or other competent authority; that the power granted in the city charter from the State had been withdrawn and lodged in the County Court, and that by the said act of April 23, 1874, the ferry franchise had been granted to the company by reason of its organization, &c., and finally, that the defendants pleaded in reconvention their right to ferry.

On April 10, 1877, the city amended, by alleging that at the time of the grant of the land made to the city by the King of Spain, on the 25th of June, 1767, the ferry privilege was also, by the same act of concession, granted the city for the use and benefit of the inhabitants, and that since said concession the city had continued, for the use and benefit of such inhabitants, to enjoy the fees, fruits, and profits thereof.

On April 11, 1877, the city demurred specially to the answer of defendants, that the defense of incorporation under the act of April 23, 1874, was an insufficient defense to this action; that the defense setting up ownership of land in defendants, as authorizing them to have a ferry, was also insufficient as a defense, &c. These demurrers were overruled by the court, and the city excepted.

Afterwards, and before the trial, the city, on April 13, again amended, and charged that the sale of land on the river to Macdonnell, which defendants had set up in their answer as authorizing them to establish a ferry, was made, if at all, by the mayor (Benavides) without authority from the city; that the mayor was ignorant of the contents of the title to Macdonnell, and that this title being in the English language, which is not understood by the mayor, he signed under the belief that it related to city lots within that part of the city lands which had been laid off into town lots by authority of the city, but that said title pretends to convey land not authorized by the city to be laid off into lots and sold, &c.

To this defendants replied, on the same day, that the city had conveyed the land to Macdonnell, and he to the ferry company; that the conveyance to Macdonnell was fully authorized, and that it had been ratified by the city; that it was true said conveyance was in the English language, and if the mayor did not understand it, it was not defendants' fault; that the mayor did know the situation of the land conveyed and the contents of the conveyance, &c.

There were other pleadings and demurrers immaterial to the questions decided.

At the April Term, 1877, the case was submitted to the court, a jury being waived. The court gave judgment for defendants.

Plaintiff introduced in evidence the following section of the city charter of Laredo:

“SECTION 5. Be it further enacted, That the said mayor and aldermen shall be invested with the following powers, viz.: * * * Thirdly. They shall have authority to establish ferries; fix the rates, fees, and rents of the same, * * * and sell and dispose of any property belonging to the city, for the benefit thereof.”

It was admitted that plaintiff owned the land claimed in petition on the 16th of October, 1875.

Plaintiff next proved, by Santos Benavides, that since about forty-four years ago the city of Laredo had owned the ferry, the proceeds being used for town purposes; that for more than fifty years the city has continued in possession of the ferry; that in “1824 one Lazaro Benavides had control of the ferry, under an agreement with the people of Laredo, by which they were to have free passage in his boat until they could get a boat, and he got the fare paid by strangers passing.”

Refugio Benavides testified that since 1842 the town owned the ferry; that in 1859 he was mayor, rented the ferry, and citizens who belonged to Laredo paid no fare passing over, but strangers paid; that he was mayor last year and the year before (1875 and 1876); that in 1875 the rent was over $500, and that year the ferry was not free to the people of Laredo; that lessee, of his own will, agreed to pass citizens on Sundays; that last year the rent was about $2,900, paid in advance.

Cristobal Benavides says that he rented the ferry in 1874 and 1875; that all people paid passage--citizens of Laredo as well as everybody else.

Plaintiff next introduced a translation by Major Felix A. Blucher, made in the year 1858, of a Spanish document known as the “Vicita-General,” the said document being made on the 25th day of June, 1767. The portion of this document pertinent to this case is as follows:

“And hereto [erection of a church] may be applied also, for the present, the money collected at the canoe ferry opposite the town, which money shall be safely deposited, and which ferry we hereby do declare common property of the town, for which reason the householders and inhabitants of the same shall not pay any charges at the crossing, but be responsible for keeping the same in order, and for strangers passing the river we fix the charges at two reals per head, and at one real for each package of freight. After this work [the church] has been completed, the proceeds shall be deposited for some other use necessary or convenient for the community, but not to be distributed without the unanimous consent of the justice, councilmen, and procurator-general, all of which regulations they shall observe with the strictness required in matters of such importance, for the benefit and advancement of the place, without deviating therefrom in the most trifling matter.”

Appellees then put in evidence--

1. Its original articles of incorporation under act of the Legislature of 1874.

2. Its amended articles of incorporation.

3. Conveyance from Refugio Benavides, mayor of the city of Laredo, to C. M. Macdonnell of the land claimed by the ferry company.

4. Deed from Macdonnell, of same land, to the ferry company.

5. Proceedings and order of the County Court establishing defendants' ferry, receipt for the tax imposed by the county, and license to run its ferry.

At the January Term, 1878, of this court, the city of Laredo applied to the Supreme Court, in which this cause was then pending, for a “temporary injunction” to restrain appellees from ferrying, &c., as asked for in the original petition, and that the same should be continued in force until the final decision on the appeal. On that motion the following opinion was delivered by Roberts, then chief justice:

ROBERTS, CHIEF JUSTICE.

The appellant, being plaintiff below, applied to the district judge for an injunction, which was refused, and plaintiff filed a bill of exceptions to such refusal. The filing of the exceptions bears the same date as the filing of the petition, to wit, 18th of April, 1876; but the entry of it in the record does not show that it was during a term of the court the petition was filed and the exceptions taken. Upon a trial of ...