Combs v. United Irr. Co.
| Decision Date | 01 December 1937 |
| Docket Number | No. 10174.,10174. |
| Parties | COMBS v. UNITED IRR. CO. |
| Court | Texas Court of Appeals |
Appeal from Ninety-Third District Court, Hidalgo County; Fred E. Bennett, Judge.
Action by the United Irrigation Company against Guy S. Combs, in which the latter, as independent executor of the estate of D. S. Combs, deceased, intervened. From a judgment for plaintiff against decedent's estate, intervener appeals.
Affirmed.
Nowlin Randolph, of San Antonio, for appellant.
R. D. Cox, Jr., and Strickland, Ewers & Wilkins, all of Mission, for appellee.
Appellee, United Irrigation Company, a corporation, instituted this suit in the ninety-third district court of Hidalgo county against Guy S. Combs, individually, seeking to recover the sum of $1,981.07, alleged to be the amount due for water on the flat rate basis, under a permanent water contract covering 114.9 acres of land alleged to belong to said Guy S. Combs, and for foreclosure of an alleged lien on said 114.9 acres of land. The flat rate was alleged to be $4 per acre per year, and the suit was for a period of five years.
Guy S. Combs, as independent executor of the estate of D. S. Combs, deceased, intervened in the case, alleging, among other things, that the 114.9 acres of land did not belong to him individually, but was owned by the estate of D. S. Combs, deceased. He also set up many defenses to the cause of action asserted by appellee.
The trial was to the court, without the intervention of a jury, and judgment was rendered in favor of the irrigation district for the amount sued for, together with a foreclosure of the lien against the estate of D. S. Combs, deceased. Guy S. Combs individually was dismissed from the suit. The trial court filed findings of fact and conclusions of law amply supporting the judgment. Guy S. Combs, as independent executor of the estate of D. S. Combs, deceased, has prosecuted this appeal.
The facts show that the 114.9 acres of land involved herein was a part of a larger tract of land owned by Hicks A. Wood, Edwin G. Paschal, and D. S. Combs; that such owners accepted a permanent water contract offered by the irrigation company a number of years prior to this suit; that thereafter D. S. Combs became the owner of the 114.9 acres here involved; and thereafter D. S. Combs died, and his estate became the owner of said land. The permanent water contract covers approximately 100 pages of the statement of facts and contains numerous provisions, many of which are unimportant to this appeal, and we shall hereafter discuss the provisions of this contract which are pertinent to the questions raised.
Appellant's first complaint is that the failure of the irrigation company, appellee herein, to execute the "period contract" provided for in paragraph 39 of the permanent water contract, terminated such contract. We overrule this contention. The contract is a permanent water contract, and the failure to execute "period contracts" provided for in paragraph 39 could in no way defeat the provisions of the main contract.
Appellant next complains that the contract providing that the company shall fix its flat rate on the basis of six factors therein set out, the burden was upon the company to show that its flat rate had been fixed in accordance with the terms of the contract. Appellant's principal complaint is that the evidence shows that the flat rate was fixed without taking into consideration the one item of profit to the company. The failure to consider this item could work no prejudice to appellant. Before appellant could complain of the flat rate he would have to show that it was not a reasonable rate, in view of the provisions contained in the contract. Chapman v. American Rio Grande Land & Irrigation Co., Tex.Civ. App., 271 S.W. 392.
Appellant next complains that, inasmuch as the flat rate was more than the land would produce, it amounts to confiscation of the property, and that therefore the irrigation company would not be permitted to enforce it. This contention is overruled. In the first place, the right of an irrigation company to collect the flat rate under its contract simply does not depend upon what the land may produce. Furthermore, the failure of the land herein to produce may have been caused by lack of planting crops and proper cultivation; but, regardless of why it failed to produce revenue, this fact alone does not defeat the irrigation company's right to collect its flat rate from appellant.
Appellant next complains that the contract was not enforceable because it lacked mutuality of obligation in that it provided that the company should not be liable for failure to furnish water for certain named causes, or for any other cause other than the negligence of the company. That provision of the contract being as follows: ...
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