Edinburg Irr. Co. v. Ledbetter

• Decision Date: 22 November 1922
• Docket Number: (No. 6789.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 247 S.W. 335
• Parties: EDINBURG IRR. CO. et al. v. LEDBETTER et al.
• Court: Texas Court of Appeals

247 S.W. 335

EDINBURG IRR. CO. et al. v. LEDBETTER et al.

(No. 6789.)^*

Court of Civil Appeals of Texas. San Antonio.

November 22, 1922.

On Rehearing, January 3, 1923.

Appeal from District Court, Hidalgo County; Hood Boone, Judge.

Suit by A. Ledbetter and others against the Edinburg Irrigation Company and others. From a judgment granting part of the relief sued for, defendants appeal. Affirmed in part and remanded in part on rehearing.

Kennerly, Lee & Hill, Geo. A. Hill, Jr., and Richard T. Fleming, all of Houston, for appellants.

Geo. P. Brown, of Edinburg, Don A. Bliss, of San Antonio, Seabury, George & Taylor, of Brownsville, and Roy Buckley, of Mission, for appellees.

COBBS, J.

This was a suit in the nature of a suit interesse suo instituted by A. Ledbetter et al., appellee, and 11 others similarly situated, against the Edinburg Irrigation Company, the W. E. Stewart Land Company, the Stewart Farm Mortgage Company, W. E. Stewart, the Hidalgo Land Company, the San Antonio Loan & Trust Company, the American National Insurance Company, and James Hoit. It was purely one in equity on the part of owners with water rights under the irrigation system of the Edinburg Irrigation Company in Hidalgo county, Tex., for relief by injunction and for the appointment of receiver to take charge of said property and injunction against the issuance of new water rights and new water contracts to lands controlled by said Stewart interests. The Hidalgo Land Company, the San Antonio Loan & Trust Company, the American National Insurance Company, and J. W. Hoit, joined because of some claim, right, title, or interest in and to said irrigation system prayed to be adjudicated. By amendment the cause of action was broadened and changed by an amended original petition filed, upon which, and other amendments and pleadings filed by the parties, the case went to trial. One hundred and thirty-one parties, claiming to be similarly situated, joined plaintiffs suing in their own behalf and in behalf of all others similarly situated. They, together with the plaintiffs, by their separate causes also sued for damages against the Edinburg Irrigation Company in the same suit. These demands are brought on behalf of 79 of the plaintiffs for amounts ranging from $24, the smallest, to $5,664, the largest, based on the total or partial failure on account of insufficient water supply from Edinburg Irrigation Company of various crops last grown in the year 1920 and others in the year 1921, situated in different parts of the Hoit, Hammond, and Edinburg tracts, which substantially comprise all the lands under the canal system.

The crops damaged, of various kinds, were such as are usually cultivated and grown in the valley, including orchards alleged to arise out of the breach of contract in writing conveying water rights between the parties and the Edinburg Irrigation Company in not furnishing water, but no pleading claiming a statutory right to water independent of water contracts was pleaded.

J. W. Hoit, independent of his defensive pleadings, sought by cross-bill against all the parties his alleged permanent water rights appurtenant to the lands, a part of which he owned and to a part of which he held vendor's lien notes in excess of the value of the lands—they would be without water rights—alleging such rights as having priority over other lands under the irrigation system of said Edinburg Irrigation Company, including those of plaintiffs. He alleges the said Edinburg Irrigation Company, including lands of plaintiffs, denies the existence of his water rights and the priority thereof, and refuses to connect up with its canals the laterals he had built from said canals up to his own lands and to third lift pumps that he had acquired for the better irrigation of such parts of his lands as lie too high to be watered by gravity flow out of the company canals, and generally refuses to furnish any water whatever to the said lands. He prayed to have his water rights established and for relief by mandatory injunction to compel recognition, and for water service by said irrigation company to his said lands. In the judgment relief is granted to J. W. Hoit and the other plaintiffs in so far as it resulted in the relief for the installation of pumps and improvement of other canal facilities, supply of water, etc., but denied to them all damages against the Edinburg Irrigation Company mingled with their suit for equitable relief.

Upon the answers of the jury a judgment was entered, denying the receivership, the mandamus, and a part of the equitable relief that had been prayed for. Edinburg Irrigation Company and the Stewarts, as appellants, complain of the judgment, and seek a reversal because the judgment awards equitable relief to J. W. Hoit, whose water rights are assailed, a part of which relief also runs in favor of A. Ledbetter and the others who were plaintiffs, who also on cross-assignment of error seek to reverse the judgment because the equitable relief granted does not extend far enough. The trial court, having sustained exceptions to misjoinder, refused to consider the individual claims asserted for damages.

It will be quite difficult to embrace this opinion in a short space, and discuss all the various contentions as we shall attempt to do. The transcript contains 614 pages. The statement of facts are embraced in two separate volumes as Nos. 1 and 2, and together contain 1,357 pages. The brief of Edinburg Irrigation Company contains 162 printed pages. The brief of A. Ledbetter et al., appellees, contains 131 printed pages, and brief of J. W. Hoit, appellee, contains 64 printed pages.

While the judgment of the court is unusually lengthy and prolix, leaving out caption and the numerous parties to the suit, it contains the special charges given and answers of the jury and judgment of the court, takes about 15 pages to give the questions and answers, and 15 pages more for the decree, and 24 more pages additional with a description of the land. The substantial effect of the entire judgment was to decree to the plaintiffs therein (Ledbetter and others designated as appellees herein), including J. W. Hoit, the equitable relief prayed for, but as to his or any other parties' claim for damages was denied without prejudice to litigate it in some other proceeding, except in so far as the same may have been adjudged, decreed, or dismissed or otherwise disposed of.

It is also provided in the decree:

"That the court retains such jurisdiction, as it may lawfully reserve unto itself notwithstanding this decree, to hear and determine such motions and petitions as may be properly brought before it after the installation of additional pumping units and other irrigation facilities or after other material changes in existing conditions, for the extension of water service beyond the limits now decreed."

The Edinburg Irrigation Company having declared its willingness to furnish plaintiffs (Ledbetter et al.) a sufficient supply of water at the proper time for the irrigation of the lands under the system, and being ready and able to do so, it renders it unnecessary to appoint a receiver or issue any mandatory injunction as prayed for. All costs were adjudged against Edinburg Irrigation Company, W. E. Stewart, Stewart Farm Mortgage Company, and W. E. Stewart Land Company.

We shall first answer the assignments and propositions raised by the appellants.

It is contended that, James W. Hoit having been a party to the suit in the district court of Cameron county in cause No. 3073, entitled American National Insurance Company et al. v. Valley Reservoir & Canal Company et al., the judgment being that of a domestic court of general jurisdiction, cannot be collaterally attacked in this suit, brought in the district court of Hidalgo county.

It is contended that, said cause No. 3073 of the district court of Cameron County being a receivership proceeding, ancillary to the foreclosure of a mortgage on said system, wherein the court, subsequently entering an order of sale of the system, adjudicated the water contract of Hoit, and adversely to him, however, in this proceeding, he cannot collaterally attack the decree and order of sale in said cause No. 3073 and its confirmation.

It was shown on the trial that there were no pleadings filed by any person seeking to recover of Mr. Hoit or pass from him the existence or the validity of or the superiority or priority of water rights of his or that of any other persons. No trial was held on that issue, nor was there any evidence introduced in said cause No. 3073 raising the issue in regard to water rights or water contracts, nor any relief prayed seeking to have same canceled or to have the irrigation system sold divested of the contractual obligation of serving these water rights.

The transactions by which Hoit claimed the permanent water right by contract entitling him, his heirs and assigns, to have the lands supplied in perpetuity with water in sufficient quantities for the purpose of irrigating his lands from the Rio Grande river through the irrigation system was appurtenant to the lands and ran with the title, a large portion of which he had sold, but interested as the owner of the vendor's lien obligations in securing the preservation of the permanent water rights.

But it was claimed by appellant, Hoit lost all permanent water rights by the terms of the decree in the aforesaid cause No. 3073 of the district court of Cameron county, in which Hoit was a party defendant and appeared personally therein, in which all water rights of Hoit were canceled and annulled, and appellant under the said decree of foreclosure purchased it clear and freed from such claims. A careful examination of the record in cause No. 3073 of the district court of Cameron county leads us to the conclusion that Hoit's water rights were not litigated, nor intended to be adjudicated. The main ground of attack against the preservation of Hoit's water...