Edwards v. Old Settlers' Ass'n

• Decision Date: 25 March 1914
• Docket Number: (No. 5318.)
• Citation: Edwards v. Old Settlers' Ass'n, 166 S.W. 423 (Tex. App. 1914)
• Parties: EDWARDS v. OLD SETTLERS' ASS'N.
• Court: Texas Court of Appeals

Page 423

166 S.W. 423

EDWARDS v. OLD SETTLERS' ASS'N.

(No. 5318.)

Court of Civil Appeals of Texas. Austin.

March 25, 1914.

Rehearing Denied April 29, 1914.

Appeal from District Court, Williamson County; C. A. Wilcox, Judge.

Action for injunction by the Old Settlers' Association against W. W. Edwards. Judgment for plaintiff, and defendant appeals. Affirmed.

Lightfoot, Brady & Robertson, of Austin, for appellant. John D. Hudson, Richard Critz, Sansom & Metcalfe, and Wilcox & Graves, all of Georgetown, for appellee.

Findings of Fact.

JENKINS, J.

We adopt the following findings of fact made by the trial judge herein:

"I find that the plaintiff is a corporation duly incorporated under and by virtue of the laws of the state of Texas, and that the defendant resides in Williamson county, Tex.

"I find further that about the 3d day of February, 1911, one G. W. Glasscock, now deceased, made and entered into a verbal contract with F. W. Carothers and W. K. Makemson, and also with the Old Settlers' Association of Williamson county, Tex., then unincorporated, by the terms of which contract the said G. W. Glasscock agreed to and did lease to the said Carothers and Makemson, and to the Old Settlers' Association, unincorporated, the following described tract of land:

"Lying and being situated in Williamson county, Tex., beginning at the north bank of the San Gabriel river, at a stake from which a water elm bears S. 60 E. 18 feet; thence N. 30 W. with the general line of a fence 525 feet to corner; thence S. 61 W. with a fence line 220 feet; thence S. 54 W. with fence line 1,217 feet; thence S. 37½ W. 233 feet to a fence; thence S. 32 E. with a fence line 360 feet to a stake; thence S. 55½ W. with fence line to a point 13 feet S. of the N. line of the street in North Georgetown; thence S. 400 feet to a stake; thence S. 35 feet to a large rock in the south edge of the north San Gabriel river; thence down said south edge of said North San Gabriel river to its junction with the South San Gabriel river; thence with the south bank of the San Gabriel river to a point opposite the mouth of Glasscock's old millrace; thence across said stream at a right angle to a point on the north bank of said stream; thence up the north bank of said stream to the place of beginning; and containing 33 acres of land, more or less, and being what is known as the Old Settlers' Grounds near the city of Georgetown, in Williamson county, Tex., and that in addition to said lease that said lease included a right of way from the north end of the causeway just north of the above-described premises, across said river, said right of way leading from the north end of said causeway along the north bank of said river so as to lead into the above-described 33-acre tract of leased land.

"I find that by the terms of said lease it was agreed about said above-named date that the said Glasscock should receive annual rental for the said premises of $150 per year, due and payable on the 1st day of January, at the close of each year, and that the said Glasscock reserved the right to gather all pecans for his own use on said premises, and further that he reserved the right to get sand and gravel on said premises, and fill all excavations where such sand and gravel is taken, and water for irrigation, domestic, and stock purposes; and I find, further, that the said Glasscock owned the surrounding lands contiguous to said tract, afterwards sold to the defendant herein, and that he agreed as a part of the consideration for said lease, that he would not allow any cold drink stands, shows, exhibitions, dance halls, or platforms on the land he owned within 400 yards of the above-leased land, or allow the use of said contiguous land within 400 yards of said premises for any purpose or pursuit that would come into competition with or antagonize the purpose and welfare of the said Old Settlers' Association.

"I also find that it was agreed by and between the said G. W. Glasscock and the said Carothers and Makemson and the said Old Settlers' Association, then unincorporated, that the said Old Settlers' Association should thereafter be incorporated under and by virtue of the laws of the state of Texas, and that said lease above named was made for the use and benefit of said Old Settlers' Association, then unincorporated, and that the agreement or contract between the said Glasscock and the said Carothers and Makemson and the said Old Settlers' Association, unincorporated, was that said Old Settlers' Association should thereafter be incorporated, and that said lease was made for the use and benefit of said Old Settlers' Association, unincorporated, at that time, and that, when said Old Settlers' Association should be incorporated, that said corporation should be the owner of said lease, and should be subrogated to all the rights and equities then owned or held by the said Carothers and Makemson and the said Old Settlers' Association, unincorporated, and each and all of them, that said lease was to begin on the 3d day of February, 1911, and was to continue for and during a period of 15 years from said date; and it was also agreed that said lease was to carry with it the right of exclusive possession, use, and control in the plaintiff herein and the Old Settlers' Association, unincorporated, and also the right of exclusive use and control during all of said lease, subject to the foregoing exceptions.

"I further find that it was agreed, as a part of the consideration for the making of the said lease above named, that the said Old Settlers' Association should build a tabernacle, and in connection with Williamson county, build a dam or causeway across said river so as to make a lake of water within the boundaries of said leased land, and said causeway to also be used as a public roadway; and it was also agreed that certain improvements were to be made to the springs on said land, and such other improvements as should be necessary for the use and occupancy of said land by said Old Settlers' Association.

"I further find that, in pursuance of said agreement, the said G. W. Glasscock did deliver actual and open possession and control of said premises to said Old Settlers' Association of Williamson county, then unincorporated, and that, in pursuance of said agreement, the said Old Settlers' Association remained in such possession and control until it was duly and legally incorporated under the laws of this state on the 3d day of May, 1912, for the purpose of education, etc., and that upon its incorporation said actual, open, and exclusive possession of said premises vested and continued in said corporation, that said corporation was subrogated to all the rights, privileges, and equities theretofore owned or held by said Carothers and Makemson and the Old Settlers' Association of Williamson county, unincorporated, and that it has since said date been in open, exclusive possession of said premises under said lease.

"I further find that, after entering into said lease, the said G. W. Glasscock died, and that, in the partition and division of said estate of the said G. W. Glasscock, the above-named premises were awarded to and set apart to his widow, Mrs. Helen Glasscock, and that on or about the 5th day of August, 1911, the said Mrs. Helen Glasscock, the then owner of said premises, accepted the first year's lease money on said premises, to wit, $150, and that on or about the 2d day of August, 1912, she accepted the second year's lease money, $150, and I find that said money was paid to and accepted by the said Mrs. Helen Glasscock under and by virtue of said verbal or parol contract with the said G. W. Glasscock above named, and that the said Mrs. Helen Glasscock at all times while she owned said land recognized said contract and said lease.

"I further find that, after above-named contract was made, subscription lists were circulated for stock of plaintiff, and that the said G. W. Glasscock assisted in the circulation of said lists, and solicited subscriptions for stock, and assisted in the raising of said stock subscriptions, and that several thousand dollars were raised on said stock subscriptions; and I further find that this plaintiff and its predecessor, the Old Settlers' Association, unincorporated, in consideration of said 15-year contract and lease, made valuable improvements on said land in the shape of a large tabernacle, of the value and cost of about $1,500, that they paid out about $900 in the building of said causeway, and several hundred dollars in other permanent improvements on said premises, aggregating about $3,000. I further find that the said G. W. Glasscock assisted in letting the contract for said tabernacle and causeway, and that they were nearly completed at the time of his death, and were in all things built according to contract; and I further find that under the terms of said contract of lease said improvements were to be made as part of the consideration of said lease, and were and are to be the property of the said Glasscock, his heirs and assigns, at the end of said lease; and I further find that the said improvements were made in good faith, relying on said lease, and acting strictly within the terms thereof.

"I further find that said improvements were all paid for out of the proceeds of the sale of the stock of this plaintiff corporation, and that therefore they were all paid for by this plaintiff. I further find that they are valuable and permanent improvements, and were started and nearly completed during the lifetime of the said G. W. Glasscock, with his full knowledge, consent, and approval, and erected in good faith, acting under and by virtue of the terms of said lease. I further find that they were completed with the full knowledge and consent of the said Mrs. Helen Glasscock.

"I further find that all the aforesaid payments of lease money so made by the plaintiff and its predecessor, and the improvements so placed on said premises by ...