GRAVES, Justice.
This appeal by the County is from a $1,086.50 judgment against it and in favor of the Railroad Company, entered by the 61st District Court, sitting without a jury, as for the reasonable market value of 2,173 cubic yards of gravel belonging to the latter, which the former was found to have converted to its own use and benefit.
The court supported its decree with findings of fact and conclusions of law, the former of which are not controverted here, substantially as follows:
"II. Without the knowledge, consent, acquiescence or approval of plaintiff, or any of its officers, agents or employees, during May, June, July, and August of 1934, employees of Harris County regularly employed to construct, repair and maintain public county roads in Precinct No. 1 of said county, and then engaged in said work under the control, direction and supervision of J. A. Walling, County Commissioner of said Precinct No. 1, Jack Rafferty, Engineer of said Precinct No. 1, and Walter Sayers, Road Superintendent of said Precinct No. 1, removed at least two thousand one hundred seventy-three (2,173) cubic yards of gravel, of the then reasonable market value of Fifty Cents (50¢) per cubic yard, from the old roadbed on plaintiff's right of way south of the Gabriel Lee or Red Bluff Road, and with the knowledge, consent, approval and acquiescence of the aforesaid Walling, Rafferty and Sayers, used said gravel in constructing, maintaining and/or repairing public county roads located in said Precinct No. 1.
"III. The Aforesaid J. A. Walling, Jack Rafferty, and Walter Sayers, knew at the time that said gravel was being taken by said county employees from the old roadbed on plaintiff's right of way south of Gabriel Lee or Red Bluff Road, and none of said parties instructed said employees to cease and desist from taking said gravel which belonged to plaintiff. The county employees who took the gravel as aforesaid were instructed to do so by their formen, Dillard and Triplett, who in turn were instructed to take and remove said gravel by either said Jack Rafferty or Walter Sayers.
"IV. If the gravel belonging to and taken from plaintiff, as aforesaid, had not been taken and used as stated above, it would have been necessary for Harris County to purchase and use for the same purposes an equivalent amount of gravel, paying therefor not less than Fifty Cents (50¢) per cubic yard, so that, by taking and using said gravel, Harris County has received and retained a benefit therefrom reasonably worth to said county not less than the sum of One Thousand Eighty-six & 50/100 Dollars ($1,086.50).
"V. During May, June, July, and August of 1934, R. E. Dillard and R. E. Triplett, truck foremen employed by Harris County, were in direct charge of the employees of Precinct No. 1 of said county who removed the gravel as aforesaid and hauled it to the respective county roads where it was used. During all of said time, said Dillard and Triplett made out and filed with Harris County daily work-reports similar to plaintiff's exhibit No. 2, showing the nature of the work done, the character and amount of material used, the source of the material, the place where used, and other pertinent facts. Harris County failed to either offer in evidence any of said daily reports covering the period in question, or to prove that said reports were not available.
"VI. After all members of the Commissioners' Court of Harris County, Texas, including H. L. Washburn, County Auditor of Harris County, Texas, had been officially notified, both individually and in their representative capacity and as a court, that said gravel had been thus removed and used, they, and each of them acting in their representative capacity, including Harris County and the Commissioners' Court of said County, failed and refused and at all times material hereto continued to fail and refuse to tender or return said gravel, or an equivalent amount of like gravel, to plaintiff, or to pay for the same or any part thereof, although said gravel could have been removed from the roads where used and returned to plaintiff at a cost to Harris County of from one and 50/100 Dollars ($1.50) to Two Dollars ($2) per cubic yard. Harris County did not prove or attempt to prove that it could not have secured an equivalent amount of like gravel for One Thousand Eighty-six and 50/100 Dollars ($1,086.50)
to tender to plaintiff in exchange for the gravel wrongfully taken from plaintiff.
"VII. Within the time and manner provided by law plaintiff duly and properly presented its claim for said gravel to the Commissioners' Court of Harris County, Texas, which thereupon in all things denied and rejected said claim and thereafter plaintiff filed this suit on the same.
"VIII. Plaintiff has not been paid for the whole or any part of said gravel, although it has continually demanded payment for the same.
"IX. Other than denying the aforesaid claim presented by plaintiff and asserting defenses in this suit, Harris County has not repudiated the act of its agents and employees in taking, removing, and using said gravel, as aforesaid, nor has it reprimanded or disciplined its agents and employees for said act.
"Conclusions of Law.
"I conclude as a matter of law that plaintiff, Texas and New Orleans Railroad Company, is entitled to recover of and from defendant, Harris County, the sum of One Thousand Eighty-six & 50/100 Dollars ($1,086.50), representing the reasonable market-value of the gravel so taken and used, and likewise representing the value of the benefits received and retained by Harris County. To all of which Harris County duly excepts."
"Additional Findings of Fact.
"1. The Court finds as a fact that it was on April 26, 1935, that the minutes of the Commissioners' Court reflect that it was first called to the Court's attention that any gravel had been taken from plaintiff's right of way and the claim for compensation was then refused, but on November 14, 1934, plaintiff, through its attorneys, Baker, Botts, Andrews & Wharton, wrote W. H. Ward, County Judge of Harris County, claiming compensation for the gravel alleged to have been taken.
"2. The Court finds as a fact that J. A. Walling, Commissioner of Precinct No. 1 of Harris County, whose term expired December 31, 1934, never notified the Commissioners' Court of Harris County of the taking of the gravel from plaintiff's right of way.
"3. The Court finds as a fact that at the time the Commissioners' Court of Harris County first learned of the taking of any gravel from plaintiff's right of way, the gravel had become a part of the roadbeds of the roads upon which placed, so it would have to be dug out of said roadbed and injure the roadbed, assuming no other gravel was placed on the roads to replace that removed."
As presaged by the statement given, it is obvious that the single question to be decided is, whether or not the trial court rightfully thus required the appellant County to pay the value to it of the benefits it so derived from the use of appellee Railroad's gravel, taken without the Railroad's consent by the County's employes, with the knowledge and consent of the County Commissioner, Engineer, and Road Superintendent of the County's precinct No. 1, and applied by those officials in constructing and improving the public county roads in that precinct, reimbursement or payment to the Railroad therefor having been denied by the County itself.
This court concludes that the court below was right in that requirement, pursuant to these authorities: Angelina County v. Bond, Tex.Civ.App., 16 S.W.2d 338; Brand v. City of San Antonio, Tex.Civ. App., 37 S.W. 340; City of Texarkanna v. Keeney, Tex.Civ.App., 50 S.W.2d 339; City of Dallas v. Martyn, 29 Tex.Civ.App. 201, 68 S.W. 710; City of Amarillo v. Ware, 120 Tex. 456, 40 S.W.2d 57; Edwards v. Lubbock County, Tex.Civ.App., 33 S.W.2d 482; Galveston County v. Gresham, Tex.Civ.App., 220 S.W. 560; Harris County v. Neville, Tex.Civ.App., 84 S.W.2d 834; Hoffman v. Davis, 128 Tex. 503, 100 S.W.2d 94; Horne Zoological Arena Co., v. City of Dallas, Tex.Civ. App., 45 S.W.2d 714; Jones County v. Moore, Tex.Civ.App., 4 S.W.2d 289; Marsh v. Fulton County, 10 Wall. 676, 19 L.Ed. 1040; Sluder v. City of San Antonio, Tex.Com.App., 2 S.W.2d 841; Sparks v. Kaufman County, Tex.Civ.App., 194 S.W. 605; Southwestern Lloyds v. City of Wheeler, Tex.Com.App., 109 S.W. 2d 739; State v. Hale, Tex.Civ.App., 96 S.W.2d 135; West Audit Co. v. Yoakum County, Tex.Com.App., 35 S.W.2d 404; Womack v. Carson, Tex.Civ.App., 38 S.W. 2d 184, affirmed, 123 Tex. 260, 65 S.W.2d 485; Art. I, Sec. 17, Constitution of Texas, Vernon's Ann.St.
Appellant's contrary...
