Henrietta Country Club v. Jacobs

• Decision Date: 15 November 1924
• Docket Number: (No. 11150.)
• Citation: 269 S.W. 137
• Parties: HENRIETTA COUNTRY CLUB v. JACOBS.
• Court: Texas Court of Appeals

269 S.W. 137

HENRIETTA COUNTRY CLUB v. JACOBS.

(No. 11150.)

Court of Civil Appeals of Texas. Fort Worth,

November 15, 1924.

Appeal from District Court, Clay County; Paul Donald, Judge.

Petition for injunction by the Henrietta Country Club against Barney Jacobs. From the judgment dismissing a temporary injunction theretofore granted, plaintiff appeals. Reversed, and temporary injunction reinstated.

Wantland, Dickey & Glasgow, of Henrietta, for appellant.

Frank Holaday, of Henrietta, for appellee.

CONNER, C. J.

This is an appeal from a judgment sustaining a motion to dissolve a temporary writ of injunction which had been theretofore issued upon the petition of the appellant, the Henrietta Country Club. In its petition for the writ the club alleged, in substance: That it was a private corporation with its principal office and place of business in the city of Henrietta, Clay county; that the city is the owner of its waterworks, including the pumping station, two large reservoirs or lakes of water used for city purposes, together with a number of acres on which said pumping station, lakes, and reservoirs are situated; that by virtue of a 10-year lease with the city, acting by and through its mayor and city council, the club had become the lessee of the property above mentioned for a period of 10 years, whereupon the city had delivered possession of said premises, including the lakes, reservoirs, and lands adjacent thereto, and the plaintiff is now in the possession of the same; that one of the considerations for the leasing of the property was that the plaintiff should see that the embankments surrounding said bodies of water were planted in grass, that the weeds should be kept cut, that the property should be beautified, and that trespassers should be kept from polluting the waters in order that sanitary conditions might prevail with regard to the water supply in the city of Henrietta; that the city of Henrietta gave to the plaintiff the privilege of stocking said bodies of water with fish and the exclusive privilege of fishing therein; that the plaintiff had expended large sums of money in the erection of houses, the clearing of shrubbery, the building of roads, the care of the trees growing, and the planting of additional trees, and taking the proper care of the embankments surrounding said bodies of water, and had at all times maintained strict sanitary regulations with regard to said bodies of water, to the end that the said water should not be polluted, but kept free and clear of any pollution in order that the citizens of Henrietta might have a pure water supply; that the plaintiff has spent large sums of money in having said bodies of water stocked with fish, and has been using extreme care and caution with regard to fishing regulations to the end that proper propagation of fish might take place in order that said bodies of water might adequately be stocked; that the plaintiff had purchased at a large outlay of money additional acreage which it owns in fee, and had the exclusive right for its members only to fish in the waters designated.

It was further alleged that the defendant, Barney Jacobs, had, prior to the filing of the petition and at various times unlawfully entered upon the private premises of the plaintiff for the purpose of trespassing and fishing in the waters named, to the injury and damage of the plaintiff; that said defendant had no right upon said premises and no right to interfere with plaintiff in the possession and enyoyment thereof, and no right to fish in said lakes; and that he had been requested to desist from so doing, but had refused such request, and is threatening to continue said unlawful use of said bodies of water for the purpose of fishing therein, etc. The petition was duly verified.

In accordance with the order of the judge of the Ninety-Seventh district court, the plaintiff gave bond to secure the issuance of the temporary writ of injunction.

The defendant, Barney Jacobs, appeared and upon an unverified answer sought the dissolution of the injunction. He alleged, in substance: That on the 2d day of February, 1922, the city of Henrietta, acting by and through its duly elected mayor, leased to one Tom Weldon, a private citizen of the city, certain designated public property, consisting of some 20 acres of land; that said 20 acres had been bought and dedicated to the use of the city for the purpose of constructing, maintaining, and operating a waterworks system for the city, its taxpayers, and the general public at large, including the government itself; that said property was governmental in its uses; that said land had been leased to Weldon, together with all and singular the rights, members, hereditaments, and appurtenances to the same belonging, for a period of 10 years, for a consideration of $25 per annum, with interest thereon at the rate of 8 per cent. per annum, "granting to the said Tom Weldon the right to exclusively occupy and enjoy the same during the period of said lease, with the exclusive right of building clubhouses, boathouses, etc., on said property, and in any way handling the same exclusively to his own satisfaction."

A copy of the contract was attached and made a part of the motion. It was further alleged in answer that said Tom Weldon had sublet the same to the Henrietta Country Club, the plaintiff in...